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MANUAL 



CONSTITUTION 



UNITED STATES. 



Designed for the Instruction of American Youth in the Duties, 
Obligations, and Rights of Citizenship. 



BY 



ISRAEL WARD ANDREWS, D. D., LL. D., 

President o/ Marietta College. 



VAN ANTWERP, BRAGG & CO., 

137 WALNUT STREET, 28 BOND STREET, 

C INC INN A TL xVE IV YORK. 



\91$ 



Entered according to Act of Congress, in the year 1874, by 

"Wilson, Hiskle & Co., 
In the Office of the Librarian of Congress, at Washington. 

Gift 
Judge and Mrs. Isaac R. Hitt 
July 3, 1933 



ECLECTIC PRESS: 

VAN ANTWERP, BRAGG * CO. 

CINCINNATI. 



TO THE 

TRUSTEES OF MARIETTA COLLEGE, 

WITH WHOM, 
FOR MORE THAN A THIRD OF A CENTURY, 

THE AUTHOR 

has been most pleasantly associated, 

This Volume 

Is Gratefully Inscribed. 



ait) 



PEEFACE. 



This work has grown out of the necessities and ex- 
perience of the class-room. For the proper instruction 
of the student in the important subject of civil gov- 
ernment, a clear exposition of the great principles of 
the Constitution is needed, with a summary of the 
legislative provisions in which they nave been em- 
bodied. When the author took charge of this depart- 
ment of study, he found himself embarrassed in both 
these respects, and especially the latter. Questions were 
continually suggesting themselves, to which answers 
could be obtained only after laborious research. 

Urged on by a deep interest in the subject, and 
availing himself of the unusual facilities for the prose- 
cution of studies of this character furnished by the 
library of the College, the author entered upon a some- 
what extended investigation of our governmental his- 
tory. The materials thus accumulated, and accumulat- 
ing, having for some years furnished the basis for 
instruction by lectures, have now been condensed into 
tkis form, and are given to the public in the hope 
that other instructors may be in some measure relieved 

(v) 



VI PREFACE. 

from the excessive labor which similar personal exam- 
ination would involve. 

While the primary object was to provide a suitable 
text-book, a conviction that a knowledge of our gov- 
ernment can not be too widely diffused, and that large 
numbers would welcome a good work on this subject, 
has led to the attempt to make the volume a manual 
adapted for consultation and reference by the citizens 
at large. With this end in view, the author has sought 
to embody in the work that kind — and so far as space 
would allow, that amount — of information on the 
various topics which an intelligent citizen would de- 
sire to possess. 

As the value of a work of this kind depends in large 
measure upon its accuracy, it is proper to say that in 
nearly every instance the statements touching the 
If .illation or other action of the government have 
been taken from official publications. 

A careful revision of the work has been made, incor- 
porating in it all important changes in the legislation 
of the country, and giving the practical working : 
the Constitution to the present time. 

:etta CoiJjBGK, 
August, 1878. 



CONTENTS 



CHAPTEE I. 

Page. 

Civil government — its object, origin, and nature — 
different forms of government — peculiarity 
of that of the united states — not a consoli- 
dated republic, nor a league of states, . . 9 

CHAPTEE II. 

THE COLONIAL GOVERNMENTS — ROYAL, PROPRIETARY, AND 
CHARTER — THE CAUSES OF THE REVOLUTION — THE 
CONTINENTAL CONGRESS — THE DECLARATION OF IN- 
DEPENDENCE, 24 

CHAPTER III. 

The articles of confederation — their failure — the 

convention to form a constitution, ... 36 

CHAPTER IV. 

The constitution of the united states, .... 45 

(vii) 



Vlll CONTENTS. 

CHAPTER V. 

Page. 

The ratification of the constitution by the several 

STATES, 283 

CHAPTER VI. 

The admission of new states — the territorial gov- 
ernments, . . . . 294 

CHAPTER VII. 

Practical operation of the constitution, . . . 314 

CHAPTER VIII. 

The state governments, 360 

Appendix, ..... .... 371 



CIVIL GOVERNMENT. 



CHAPTER I. 

CIVIL GOVERNMENT — ITS OBJECT, ORIGIN, AND NATURE — DIFFERENT FORMS 
OF GOVERNMENT — PECULIARITY OF THAT OF THE UNITED STATES — NOT A 
CONSOLIDATED REPUBLIC, NOR A LEAGUE OF STATES. 

A knowledge of the nature and operation of the gov- 
ernment under which we live is necessary for the suc- 
cessful prosecution of the business of life, and to secure 
the happiness of ourselves and of those dependent upon 
us. We can thus adapt ourselves to the circumstances 
in which we are placed, and avoid those perplexities and 
difficulties in which one ignorant of the laws and insti- 
tutions of his country is liable to be involved. The fact 
that a man is subject to a government is a sufficient rea- 
son for studying its character and workings, although he 
may have no participation in its management. 

In a republican government the importance of such 
knowledge is still greater, because the people not only are 
amenable to the laws, but also have a voice in electing 
those who make and execute them. He who lives under 
a despotism should acquaint himself with its character 
and workings for his own protection; a citizen of a 
republic should do the same, because he is to some extent 
responsible for the government. 

Until within the last few years, Americans have been 
lamentably ignorant of their national government,- both 

(9) 



10 C'lVII, GOVERNMENT. 

as to its history and its operation. The war of the Rebel- 
lion, which could hardly have occurred had the whole 
people understood the true relation of the States to the 
national government, has had the effect to direct atten- 
tion to governmental questions. There is probably a 
stronger desire for such knowledge now than at any 
previous time, and a corresponding demand for the intro- 
duction of such studies into all our schools of higher 
grade. 

Two circumstances facilitate the acquisition of a 
competent knowledge of our government. First, our 
national existence extends over a comparatively brief 
period. About a hundred years only have passed since 
we became an independent people, while most of the 
civilized nations of the world have had a long and check- 
ered history. Second, our Constitution is a written 
instrument, framed with the utmost care, and adopted 
by the people after the most careful deliberation. No 
other nation has a constitution that can compare with 
it, either in its comprehensiveness and completeness of 
subject, or in the precision of its language. 

The object of civil government can not be better 
expressed than in the words of our Constitution. It is 
to "establish justice, insure domestic tranquillity, pro- 
vide for the common defense, promote the general wel- 
fare, and secure the blessings of liberty.' 1 These were 
the express ends to secure which the people of the United 
States ordained and established our national Constitu- 
tion. These are the ends which all governments, of 
whatever form, are under obligation to seek. Civil gov- 
ernments are not established for the good of the rulers, 
but for the good of the people. They are not for the 
good of one or a few, at the expense of the others, but 
for the good of all. 

The general good could not be secured without <rov- 
crnment. Civil government is thus a necessity. With- 
out it, justice could not be established, or domestic tran- 



OBJECT OF GOVERNMENT. 11 

quillity insured, or the common defense provided for, or 
the general welfare promoted, or the blessings of liberty 
secured. Law is the guardian of liberty. Without law 
there would be no liberty, but in its stead anarchy. One 
object of civil government is to protect us in our rights. 
It does this by restraining those who would interfere 
with these rights. Civil government is thus rendered 
necessary by the disposition of some to do wrong to oth- 
ers, and it can not be dispensed with so long as this dis- 
position to interfere with the rights of others continues. 

But government is not merely repressive. Its neces- 
sity is not wholly owing to the fact that there are wicked 
men in every community. Law and government are 
essential for the good as well as for the bad. The " gen- 
eral welfare" is to be promoted, as w r ell as the individual 
to be protected in his rights. There are many things to 
be done for the advancement of a nation, which could 
not be done without that combination and cooperation 
which are found only in governments. Science and art 
are to be fostered, education is to be encouraged, civil- 
ization to be advanced. Government has thus more to 
do than to restrain violence, to redress wrongs, and to 
punish the transgressor. There is government in heaven 
as well as on earth. 

It is sometimes said, that government is a necessary 
evil ; and that that government is best which governs 
least. The tendency of such language is to excite dis- 
trust and aversion, whereas governments should be 
respected, obeyed, and loved. A government founded 
in justice and administered w r ith wisdom is always a 
good. Were government a necessary evil, it would 
be impossible to account for the existence and strength 
of patriotism. The love of country, which is stronger 
than the love of kindred, or any other of the natu- 
ral affections, is itself a proof that by nature we 
regard government as a good and not as an evil. There 
may be abuses, but men look forward to the time when 



12 CIVIL GOVERNMENT 

will be remedied, and the afiairs of the country 
administered with wisdom and justice. That is not the 

si government which governs least, though, other 
things being equal, that may be the best which makes 
the least show of governing. A wise ruler, whether in 
the family or the state, ill never give needless promi- 
nence to the fact that he is a ruler, while an unwise 
ruler is dispDsed to make a display of his authority. 
In a good government, if the law is broken punishment 
must follow; but the better the government, the less will 
be the tendency to break the law, and therefore the less 
the necessity of inflicting punishment. In a well-regu- 
lated school or family we see no manifestation of gov- 
ernment, and apparently no government is needed : but 
this apparent absence of government is itself a proof of 
the excellent manner in which the government is 
administered. 

Society is the natural state of man. His whole 
-hows that the intention of his Maker was 
that he should live in society and under government. 
History testifies that such has been the case from the 
beginning. In every age and in every part of the earth, 
men have lived together in families, tribes, nations. 
They have been under some authority. Civil societv is 
thus a universal fact. It is not the result of any agree- 
ment among men, but is the natural working out of the 
human constitution. We are born into the nation as 
into the family. We do not make society, we find it 
alreii ting. We are to obey the laws of the land 

because they are the laws, just as the child is to obey 
the law of the family. In neither case is any consent 
asked. 

social com pa el :>ken of in connec- 

tion with civil government, it is meant that there are 
reciprocal du: - upon the governed and upon 

those who govern. Whoever enters upon any public 
office, by the act of doing so agrees to perform faithfully 



ORIGIN OF GOVERNMENT. 13 

its duties. And whoever becomes a citizen of any 
nation, by becoming so makes an implied agreement 
that he will be a good citizen. In this sense there may 
be said to be, in an existing government, a compact 
between the governed and those who govern, and a com- 
pact between each citizen and all the others. 

But it is not correct to say that civil society derives 
its authority through any such compact, for then the 
power possessed by society would be limited to that 
received from the individual men composing the society. 
But the powers of government include those which 
never belonged to the individual man, and therefore 
could never have been conferred by him upon society. 
Indeed, if there ever was a state of nature, as some have 
supposed, prior to the existence of civil society, when 
men lived without government, all possessing equal 
rights, there could manifestly have been no right to 
govern, since no one could have had authority over 
another who was his equal. Men can not give what 
they do not possess, and society could never obtain its 
right to govern from the individual citizens, since they 
never had such a right. 

Suppose, however, that this idea of a state of nature 
antecedent to civil society were fact and not fiction, and 
that men lived without government, all possessing equal 
rights; what is to be done with those who do not choose 
to give up their rights ? Plainly, the majority could 
have no authority to coerce a minority, and government 
would be an impossibility. Xor could one generation 
bind the one succeeding it ; and each new-born citizen 
would be rightfully independent of all governmental 
control until his individual rights should be voluntarily 
deposited in the common stock. 

The authority of civil society is not, then, derived from 
the individual citizens composing that society. They 
surrender nothing; society receives nothing. The fal- 
lacy in the theory of the "social compact," considered as 



14 CIVIL GOVERNMENT. 

an explanation of the origin of civil government, con- 
sists in confounding men as individuals with men as 
constituting a community. 

Wherever an independent community of men can be 
found there is already civil society. There is no neces- 
sity for men to surrender a part of their rights in order 
to form a basis for authority; the authority exists with- 
out any such surrender. In society, man has all the 
rights which he could have in any state of nature; if 
any such state of nature out of society can be conceived 
of. As has been already said, society is the natural state 
of man. Hence it is of divine origin. It is the inten- 
tion of our Creator that we should live in society and 
under government, as it is that the race should be 
grouped into families, and the child be subject to his 
parents. "The powers that be are ordained of God." 
" There is no power but of God."' Xo individual man has 
any divine right to be a king; but civil government is of 
divine origin. Whoever exercises legitimately any func- 
tion of the civil ruler, whether he be king or president, leg- 
islator or judge, is exercising an authority which is as 
divine in its origin as is the authority of a parent over 
his child. 

Civil authority is of divine origin, and it is lodged 
in the people. It is held by the nation as a whole, and 
not by them as individuals. Society is not a congress 
of sovereigns. The power of society does not come from 
the individual members, but it belongs to the nation as 
such. The nation receives it from God, as a parent re- 
ceives from God his right to govern his children. If we 
suppose that civil society possesses no authority except 
what has been imparted to it by the individual mem- 
bers, it follows, as we have already seen, that govern- 
ment can not be extended over those who have not 
surrendered their share of sovereignty. In such a case, 
majorities would have no right to control minorities. 
The supposition that civil government rests upon indi- 



POLITICAL SOVEREIGNTY. 15 

vidual sovereignty, would thus virtually destroy all 
governmental authority. 

It may be thought that the theory that the authority 
is in the community — the people as a whole — would lead 
to the other extreme of a social despotism. As, in the 
other case, the rights claimed for the individual would 
make government an impossibility, so, here, the rights 
claimed for the people as a whole would destroy all the 
rights of the individual citizen. But, although the sov- 
ereignty is in the people collectively, they have no right 
to exercise any authority which God has not bestowed 
upon them. The parent has no right to govern his 
child except for the child's good ; neither has the nation 
any right to do any thing which is not for the good of 
the people. Each member of the community has inalien- 
able rights, with which society has no right to interfere. 
It is not claimed that all rights come from the state; 
many do, but some do not. They belong to man as man. 
Humanly speaking, the sovereignty is in the nation — 
the people collective^. But this sovereignty is not 
absolute ; it must be exercised in subordination to a 
higher sovereignty which recognizes the dignity and 
worth of the human being. 

A political community, independent of all others, 
framing its own constitution, and enacting its own laws 
without hinde ranee or question from any other com- 
munity—in short, a body politic, with no political 
superior, is a sovereign state or nation. 1 France and 
England are sovereign nations ; so is the United States. 
The sovereignty is in the state, as distinct from the gov- 
ernment of the state. The people collectively constitute 



1 The word state is used by writers on government to signify a sep- 
arate political community; it is synonymous with nation. In the 
United States it is also applied to a member of the American Union. 
In this volume, when used in the former sense, it will be written state; 
when in the latter, State. 



16 CIVIL GOVERNMENT. 

the state ; the body of men who for the time being are 
invested by the state with civil authority, constitute the 
government. The political society exists as a his- 
torical fact ; thus existing, it frames for itself a constitu- 
tion and adopts a government. The nation must exist 
as a separate political community before it can give itself 
a constitution. The constitution does not constitute the 
nation, but only the government of the nation. A con- 
stitution is an organic law, and presupposes a body 
politic possessing the authority to enact such a law. 
The constitution thus made by a nation already existing, 
prescribes the mode in which the nation determines that 
its governmental affairs shall be managed. It is a kind 
of letter of instructions to those who are to act as its 
ministers in carrying on the government. It is the 
organic law to which all other laws must be conformed. 
The constitution is made by the nation for the guidance 
of the government. The government can not change it, 
but the nation can. 

This distinction between the state, or nation, on 
the one hand, and the government on the other, is of 
great importance. The sovereignty is in the nation. 
As sovereign, the nation may constitute the government 
according to its own judgment, and give it such form as 
it pleases. But the sovereignty is in the nation as such, 
and not in the individual men composing it. The will 
of the nation is expressed in the constitution, which is 
the supreme law until the nation chooses to alter it ; 
and this alteration must be made in the mode which the 
nation has itself prescribed in the same organic law. A 
large majority of the people may- disapprove of a clause 
in the constitution, but their disapprobation passes for 
nothing until the obnoxious clause is constitutionally 
removed from the constitution. The same is true of the 
laws of a country. They are supposed to be valid until 
repealed. The constitution is made by the people, and 
the laws by the government; but both are in force until 



NATURE OF GOVERNMENT. 17 

changed or repealed by the power that enacted them. 
The people as a whole do not make the laws, the govern- 
ment does not make the constitution. 

Some writers distinguish between the constitution 
of the nation and that of the government. Jameson 
calls the first a constitution considered as an objective 
fact. It is the "make-up of the commonwealth as a 
political organism; that special adjustment of instru- 
mentalities, powers, and functions, by which its form 
and operation are determined." The second is a con- 
stitution considered as an instrument of evidence. 1 Brown- 
son says, " The constitution is two-fold ; the constitu- 
tion of the state or nation, and the constitution of the 
government. The constitution of the government is, 
or is held to be, the work of the nation itself; the 
constitution of the state, or of the people of the state, 
is, in its origin at least, providential, given by God 
himself, operating through historical events or natural 
causes. The one originates in law, the other in his- 
torical fact." 2 

The constitution of the nation is unwritten. The 
constitution of the government may be written or un- 
written. The constitution of the nation is its charac- 
ter — what it is, at any epoch. The constitution of 
the government is what the nation chooses to make 
it. As the nation changes, its constitution changes 
accordingly; and the nation should change its govern- 
mental constitution from time to time, to make it 
correspond with the real constitution. The American 
nation was in existence a number of years before it 
formed a written governmental constitution. The present 
constitution, which went into operation in 1789, has re- 
ceived slight modifications at different times, and will 
continue to be modified in future years, as the character 



'Jameson's Constitutional Convention, p. Q6. 
2 Brownson's American Republic, p. 138. 
C. G. 2. 



15 :r~i - - "^zj'-Jjlj't. 



of the nation itself is changed. We shall see, 

the moie :c izi---iiLLi :*- = 0:z=r_— ::- :-:~r~ :•: re 
:<:-r_:rr-: :. _. : izi^lr -r:-^::' 7i.t ":ee- --^ ir-:-,- 
'; .-:-■ ::::::- :z. '.:..-'. ;:-:r:^::: In ire: :7t7t :? 
more reason to apprehend that needed changes will he 
ItLl-^I :.«: 7:._- :7i.i '■--'. :_ — — 1::1 in :::r.:---- 
wffl he intiodneed. 

These aie Taiioos terns of goiernnient* differing from 
each other more or less winery. In a Jfenarenw, the 
rzL-z ~-~ i ■:::.: -.*r?*:~ i- --" .•".'•"'"-7 :~ i :\:~~- .: 
government in which the authority- is held by a few. 
Zz. i. !>-■- »."*•:." :lr 7 ~t: :.-• :!::.:•:'' '.7 :: . .- ~'-^'.r 

■ -; .: =r_-:re .:' :1t*t :' . :t_- 

Ii ; l_ . 1 ;.:•.:_;- :ie -l:Lr .::..::::" :- l:: Hrvr—crilv 
.1 : -;r_^"_T :-:-:_ :!.-: .:' :lr :.~:::i-:::: .: Z:r-:;e 
are called monarchies; but in some of them the king 
- - Lrf= :«:-r: :7. z ::_: :::-:.:ri: .:' :Le r 7-::e7 -:._:--. 
An absolute monarchy is a despotism. The 
gorerns according: to his own will and caprice-,. 
!,.:•.•: rlizz :■: t^^IIitIt'I L^-?. r»i:l : 
clearly illegitimate. It is a government of force. In 
1 _-_-.: r: Li'-.z_ir;l- ;le £::z ;:tz.e :: riiTenr. :r 
-li;-- T r It -17 ":-t ...1:1 : . :z7 r_:i_:i_:;- :;_ r ?.; -- 
ereign^ wields a power more or less restricted. Great 
Britain, and all the prorinces subject to it. are called 
Her Majesty's Ilnminions. The gorernnient is carried 
:_ -'- '.:-- --."t: :j~ - i_izir 71.7 . ::__7 in.: ni — .\?e 
:-!-- I:: Z'L.v -*--'* --:<:-> ;-. : _ =7:^ Zz: :: z'zr 
same time her real power is smalL The laws are en- 
acted by Rarttamnnt. and they are administered by the 
minister^ who are called Her Majesty's government. 
7 n 1 :.- :- -:^-<-- : :z :~ : -.-?e^ :\ T ~EL :— .: 
Locfe. which is hereditar of 

tt7:;7 :? -V r> - 

A ' r. '> ■ > ;-----;-- :. :• i:_:; -e.C:: 7 - 
belonr? :■: :br zj.z:-:i 7- n'-f: -/'in :: :i-r Viz- :r :7r 



OUR GOVERNMENT PECULIAR. 19 

nobles. It is a government in which the authority is 
exercised by the representatives of the people. It dif- 
fers from a Democracy in this, that in the latter the 
power is exercised by the people themselves, while in 
the former the people elect representatives to act for 
them. A pure democracy can exist only in a small 
territory, where all the people can meet and enact 
laws. A republic may be democratic or aristocratic. 
If suffrage is universal, if the rulers are elected by 
the whole people, the government is a democratic re- 
public. In proportion as suffrage is restricted, and the 
number of voters diminished, the government becomes 
less democratic and more aristocratic. 

Most existing governments are, to some extent, repub- 
lican, although at the same time monarchical. Louis 
Napoleon, late emperor of the French, held his office 
by election. The people of France made him emperor 
by their votes. The monarchs of England rule by hered- 
itary right : the members of the House of Lords hold 
their seats by virtue of their birth, but the members 
of the House of Commons are elected. The govern- 
ment is thus at the same time monarchical, aristo- 
cratic, and republican ; but in its republican part, it 
is more aristocratic than democratic, as a large part 
of the people are deprived of the right of suffrage. 
Macaulay calls the Roman emperors republican magis- 
trates named by the senate. 

Our own government is peculiar. John Quincy 
Adams speaks of it as "a complicated machine. It is 
an anomaly in the history of the world. It is that 
which distinguishes us from all other nations, ancient 
and modern." Dr. Brownson says, " The American Con- 
stitution has no prototype in any prior constitution. 
The American form of government can be classed 
throughout with none of the forms of government de- 
scribed by Aristotle, or even by later authorities. Aris- 
totle knew only four forms of government : Monarchy, 



'21 CITIL GOYEELV^IZr: 

Aristocracy. Democracy, and Mixed Governments. The 
American form is none of these, nor any combination 
bb. It is original, a new contribution to political 
science, and • attain the end of all wise and 

just government by means unknown or forbidden to 
the ancients, and which have been but imperfectly 
comprehended even by American political writers them- 

r not a simple, or consolidated 
republic, on the one hand, nor, on the othe: 
league of - Many seem to suppose that there is 

no middle ground between these two: that the denial 
equivalent to the affirmation of the other. 
The American people itirte a nation, with a re- 

publican government. The nation has a Constitution 
in which the character of the government is clearly 
delineated. This Constitution is the supreme he* 
the land. But the country is divided into divisions, 
calle: each of which has i c ntution. The 

people of the whole nation have made the general 
C ::-~:~;rion. while the people of each State have made 
a constitution for that political division. The national 
Constitution is operative throughout the whole domain ; 
binding on all the people. The constitution of a 
:>nfmed in it? operation to the State limits : be- 
yond them it has no force. But within the - is the 
organic law. whose ] : "isions. unless conflicting with 
the national . rion or the laws enacted under it. 
be carried out. Were the government a league 
ould be no supreme national govern- 
:he nation a consolidated republic, there 
could be no 5 of "Cnquestionably 
American people are a single people, a nation, in the 
same sense, and just as truly, as the people of France. 
he same e national C : 3D everv- 



1 Brownson r e American Republi 



OUR GOVERNMENT PECULIAR. 21 

where recognizes the existence of the States, with their 
separate constitutions, and their various departments. 

Were our government a simple republic, we should 
have no laws except those enacted at Washington. In 
that case, a county would bear to a State the same re- 
lation that a State does to the nation, as is some- 
times affirmed to be the case now. But the statement 
is incorrect. A county can do nothing politically which 
it is not authorized by the State to do. A State can 
do any thing politically which does not contravene a 
law or the Constitution of the nation. The people of 
a county, as such, have no constitution, and have no 
power to form one. The people of a State have a con- 
stitution, and may alter it at pleasure, provided its 
provisions are in harmony with the national laws and 
Constitution. The county originates nothing; all its 
power comes to it from a political body above it. The 
State originates every thing; its power coming directly 
from the people themselves. 

But although the States have constitutions, and de- 
rive their governmental authority from the people, this 
does not make them sovereign states, or the general 
government a mere confederacy. The American people 
are one people, yet their government is not a consoli- 
dated one. They exist in States, yet their government 
is not a confederated one. From the day when the 
Declaration of American Independence was made, they 
have existed as a nation, yet grouped into States. The 
nation and the thirteen original States began their 
existence together. Neither preceded, neither followed. 
The American people "have not, as an independent 
sovereign people, either established their union, or 
distributed themselves into distinct and mutually in- 
dependent States. The union and the distribution, 
• the unity and the distinction, are both original in 
their Constitution, and they were born United States, 
as much and as truly so as the son of a citizen is 



22 CIVIL GOVERNMENT. 

born a citizen, or as every one born at all is born a 
member of society, the family, the tribe, or the nation. 
The Union and the States were born together, are in- 
separable in their Constitution, have lived and grown 
together; and no serious attempt till the late secession 
movement has been made to separate them." 1 

"Say the people of the United States are one peo- 
ple in all respects, and under a government which is 
neither a consolidated nor a confederated government, 
nor yet a mixture of the two, but one in which the 
powers of government are divided between a general 
government and particular governments, each emanat- 
ing from the same source, and you will have the 
simple fact." 2 " Strictly speaking, the government is 
one, and its powers only are divided and exercised by 
two sets of agents or ministries." 3 To the same pur- 
pose Jameson: "And here I may remark that the 
Constitution of the United States is a part of the con- 
stitution of each State, whether referred to in it or 
not, and that the constitutions of all the States form 
a part of the Constitution of the United States. An 
aggregation of all these constitutional instruments 
would be precisely the same in principle as a single 
constitution, which, framed by the people of the Union, 
should define the powers of the general government, 
and then by specific provisions erect the separate gov- 
ernment of the States, with all their existing attribu- 
tions and limitations of power." 4 

No other nation has such a distribution of the 
powers of government. Foreigners almost universally 
fail to comprehend it, and many of our own people 
find it a perplexing subject. The general government 
and the particular governments together constitute 
the government of the United States. The former is 
general, as its care extends to the whole Union; the 



Am. Rep., p. 222. 2 Id., p. 231. 3 Id., p. 250. 4 Const. Con., p. 85 



THE SOVEREIGNTY IN THE WHOLE PEOPLE. 23 

governments of the States are particular, as limited to 
the local interests of the individual States. The two 
in combination form the one supreme national govern- 
ment, or government of the United States. It is one 
government, exercising its powers in two different 
spheres. The authority comes from the same people, 
the people of the United States, in whom is the whole 
sovereignty. As stated above by Judge Jameson, the 
general Constitution and the constitutions of the States 
might be considered as one great instrument. There 
are, first, those articles which are concerned with the 
interests of the whole, and then, in succession, those 
which relate to the particular and local interests of 
the several States. Or we may say that the people of 
each State have two constitutions ; one local and par- 
ticular, the other general. The latter has been adopted 
by them in conjunction with the people of the rest of 
the nation ; the former they have adopted by them- 
selves, yet taking care that none of its provisions are 
in conflict with those of the general Constitution. The 
local constitution is no more the constitution of a par- 
ticular State than the general Constitution is. The 
people of New York by their ratification of the gen- 
eral Constitution, and the people of Ohio by their adop- 
tion of it at their entrance into the Union, have made 
it their own as truly as those constitutions for the 
adoption of which they alone voted. Every provision 
of the Constitution of the United States is to be re- 
garded as expressing the w T ill of the people of Ohio as 
much as any provision of the constitution of that State. 
There is, thus, no legitimate place for conflict between 
the general government and the governments of the 
States, because they have all been formed by the same 
authority — the people of the nation. It was never in- 
tended that these should be arrayed against each other 
like political parties, or serve as "checks and balances," 
after the example of some other governments. 



CHAPTER II. 

THE COLONIAL GOVERNMENTS — ROYAL, PROPRIETARY, AND CHARTER — THb 
CAUSES OF THE REVOLUTION— THE CONTINENTAL CONGRESS— THE DEC- 
LARATION OF INDEPENDENCE. 

The Colonies, which declared their independence of 
Great Britain in 1776. and formed a new nation, known 
from that time as The United States of America, were 
thirteen in number, viz., Massachusetts. New Hampshire, 
Connecticut. Rhode Island, New York, New Jersey. 
Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia. These had been 
settled at various times, from 1607, when the settlement 
of Virginia was commenced at Jamestown, to 1732, when 
the Colony of Georgia was established. They were not 
all settled as so many distinct colonies, but various 
changes had taken place among them. Thus, the 
Colony of Massachusetts, as it existed at the beginning 
of the War of the American Revolution, embraced what 
constituted originally three distinct colonies; that of 
Massachusetts, that of New Plymouth, and the Province 
of Maine. The Colony of New Haven had been merged 
in that of Connecticut. The Carolinas, on the other 
hand, had been divided; and what was at first a single 
colony, under the name of Carolina, was made two in 
1732, and the divisions were called by the present names 
of North Carolina and South Carolina. 

All the lands were held by titles coming from the 
British crown, which claimed the country by the right 
of discovery. Near the close of the fifteenth century. 
King Henry the Seventh had sent out John Cabot on a 
voyage of exploration, who discovered the Island* 

(24) 



THE COLONIAL GOVERNMENTS. 25 

Newfoundland and St. John, and sailed along the coast 
from the fifty-sixth to the thirty-eighth degree of north 
latitude. All this territory, in consequence, was claimed 
to belong to Great Britain, and by that power grants 
were made from time to time to companies and to indi- 
vidual proprietors. Under the charters and patents thus 
granted, settlements were made and local governments 
established. The colonies all acknowledged allegiance 
to the mother country while they had no political con- 
nection with one another. 

The colonial governments have been described by most 
writers, following the division given by Blackstone, as 
of three kinds; Provincial, Proprietary, and Charter. 
The Provincial governments, which were often called 
Royal, had a governor and council appointed by the 
Crown, and a legislature whose upper house was the 
council and whose lower was elected by the people. The 
governor had a negative upon all the proceedings of the 
legislature, and could also prorogue or dissolve them at 
pleasure. Laws might be enacted not repugnant to the 
laws of England, and subject to the ratification of the 
Crown. The governor, with the advice and consent of 
the council, could establish courts and appoint judges 
and other officers. 

In the Proprietary governments, the proprietors 
appointed the governors, and it was under their author- 
ity that legislative assemblies were convened. While the 
proprietors thus exercised those prerogatives which in 
the Royal governments were exercised by the Crown, 
the sovereignty of the mother country was, nevertheless, 
to be strictly maintained. 

In the Charter governments the people had much 
more political power. Their relation to England was 
more like that of the citizens of one of our States to the 
nation, while that of the people in the Royal govern- 
ments was more like that of the people in one of our 
Territories. The charter granted to Massachusetts by 
c. o. rj. 



26 CIVIL GOVERNMENT. 

Charles the First gave power to elect annually a gov- 
ernor, deputy-governor, and eighteen assistants. Four 
" great and general courts" were to be held every year, 
to consist of the governor or deputy-governor, the assist- 
ants, and the freemen. These courts were authorized 
to appoint such officers as they should think proper, 
and also to make such laws and ordinances as to them 
should seem meet ; provided they were not contrary to 
the laws of England. 1 

Connecticut and Rhode Island formed governments for 
themselves; the provisions of which were afterwards 
secured to them in charters granted by Charles the Sec- 
ond, soon after his restoration to the throne. The peo- 
ple of these colonies, by the express words of their char- 
ters, were entitled to the privileges of natural-born sub- 
jects, and invested with all the powers of government, 
legislative, executive, and judicial. The only limitation 
to their legislative power was that their laws should not 
be contrary to those of England. 2 

"The king and parliament claimed the right to alter 
and revoke these charters at pleasure ; but the colonists, 
on the other hand, denied this right, and claimed 
them to be solemn compacts between them and the 
Crown, irrevocable unless forfeited by some act of the 
grantees. This was a continual source of contention 
between the parent country and the charter colonies, 
and was one of the causes which finally produced a sep- 
aration between the two countries." 3 

The people of these two colonies were indeed so well 
satisfied with their charters, granted in 1662 and 1663, 
that the} 7 continued to live under them long after they 
had ceased to be colonies, and had become States of the 
American Union. Connecticut did not form a State con- 
stitution till 1818, nor Rhode Island till 1842. 

1 Pitkin's Pol. and Civ. Hist. U. S., I, p. 36. 

2 Pitkin, I, p. 54. 3 Ibid, p. 55. 



THE COLONIAL GOVERNMENTS. 27 

The colonies which had charter governments were, as 
we have seen, Massachusetts, Rhode Island, and Con- 
necticut. 

The Royal, or Provincial, governments were those of 
New Hampshire, New York, Virginia, and Georgia; to 
which were added New Jersey in 1702, and the Caro- 
linas in 1729, all which had previously been under Pro- 
prietary governments. 

The colonies that continued under Proprietary gov- 
ernments till the Revolution were Pennsylvania, Mary- 
land, and Delaware. 

It has been seen that each of the colonies exercised 
some of the powers of government, while none claimed 
to be independent of England. In the Plymouth Col- 
ony, for the first twenty years, all the freemen met in 
" general court " and participated in making laws. In 
1639, a house of representatives was substituted for the 
whole body of freemen. In Virginia, a general assem- 
bly, composed of representatives from the various planta- 
tions, was called in 1619. This was the first representa- 
tive legislature that ever sat in America. Eventual^, 
all the colonies elected one or both of the branches of 
their provincial legislatures. 

The first union among any of the colonies was formed 
in 1643. It embraced Massachusetts, Plymouth, Con- 
necticut, and New Haven, under the name of "The 
United Colonies of New England." Their object was to 
defend themselves against the Indians, and also to resist 
the claims and encroachments of the Dutch. 1 

In June, 1754, commissioners from seven of the col- 
onies, viz., Massachusetts, New Hampshire, Rhode Island, 
Connecticut, New York, Pennsylvania, and Maryland, 
met in Albany at the request of the lords commissioners 
for trade. The object was to form a treaty with some of 
the Indian tribes, and to consider the best means of 



1 Pitkin, I, p. 50. 



28 CIVIL GOVERNMENT. 

defending America against France. With reference to 
this end the British Secretary of State had suggested 
that a plan of union among the colonies should be formed. 
At this meeting, after the adoption of a resolution that a 
union of the colonies was absolutely necessary for their 
preservation, a committee was appointed, consisting of 
one member from each colony, to report a plan of union. 
One proposed by Dr. Franklin, who was a member of the 
committee, was finally adopted by the Convention. 

It provided for a general government of all the Ameri- 
can Colonies, to consist of a president-general to be 
appointed by the Crown, and a grand council of dele- 
gates to be chosen every three years by the colonial 
assemblies. The president and council were to regulate 
all affairs with the Indians, to make new settlements on 
lands purchased of the Indians, and govern such settle- 
ments, to raise soldiers, build forts, and equip vessels for 
guarding the coast and protecting the trade. For these 
purposes, they were to make laws and levy such duties 
and taxes as they might deem just. The president was 
to have a negative on all laws and acts of the council, 
and to see that the laws were executed. 

This plan was adopted by the Convention; all the dele- 
gates voting for it except those from Connecticut. But 
it never went into operation, having failed to obtain the 
approval either of the colonies or the mother country. 
" It had the singular fate of being rejected in England, 
because it left too much power in the hands of the colo- 
nists; and it was disapproved in America, because it 
transferred too much power into the hands of the Crown." * 

In 1765, a Congress of delegates was held at New 
York. This was in consequence of the passage of the 
Stamp Act by the British Parliament in March of the 
same year. That body had determined to raise a rev- 
enue from the colonies by taxation, although the colo- 



1 Pitkin, I, p. 145. 



THE CAT'SES OF THE REVOLUTION. 29 

nists most vehemently protested against it. The passage 
of the Stamp Act, which required all legal documents to 
be on stamped paper furnished by the British govern- 
ment, excited universal alarm in the colonies. The 
Colonial Assembly of Virginia, at a session held soon 
after the news reached America, adopted resolutions of 
the most decided character. These resolutions were 
moved and supported by the celebrated Patrick Henry. 
When, in the heat of debate, he exclaimed, "Caesar had 
his Brutus, Charles I. his Cromwell, and George III.'' — he 
was interrupted by the Speaker and others with the cry 
of " treason." Pausing a moment and fixing his eye on 
the Speaker, he added — "may profit by their example; 
if this be treason, make the most of it." 

Meanwhile Massachusetts had voted that it was desir- 
able that a Congress of delegates from all the colonies 
should be held. Accordingly, Massachusetts, Rhode 
Island, Connecticut, New York, New Jersey, Pennsyl- 
vania, Delaware, Maryland, and South Carolina elected 
commissioners who met at New York, as stated above. 
New Hampshire approved of the Congress, but from the 
peculiar situation of the colony it was judged not pru- 
dent to send delegates. Virginia, North Carolina, and 
Georgia were not represented, because the governors of 
those colonies refused to call special assemblies for the 
appointment of delegates. 

"This w r as the first general meeting of the colonies 
for the purpose of considering their rights and privi- 
leges, and obtaining a redress for the violation of them 
on the part of the parent country." l They adopted a 
declaration of rights and grievances, which asserted 
the claim of the colonists to all the inherent rights 
and liberties of subjects within the kingdom of Great 
Britain ; " that it is inseparably essential to the free- 
dom of a people, and the undoubted right of Eng- 



Pitkin, I, p. 180. 



30 CIVIL GOVERNMENT. 

lishinen. that no taxes be imposed on them but with 
their own consent, given personally or by their repre- 
sentative-." : 

The Stamp Act was subsequently repealed, but other 
taxes and duties were imposed quite as obnoxious to 
the colonies. Their efforts to obtain redress being un- 
successful, it became obvious that they must form a 
closer union for their own protection. In 1771:. Mas- 
sachusetts recommended the assembling of a Conti- 
nental Congress, to deliberate upon the state of public 
affairs. 

On the fifth of September, a Congress of delegates 
from twelve colonies assembled at Philadelphia. Of 
these, some were appointed by the popular branch of 
the Colonial Assembly, while others were elected by 
conventions of the people. Georgia, the youngest of 
the colonies, was not represented. This is known as 
''The First Continental Congress." "The Congress thus 
assembled,"' says Judge Story, " exercised de facto and de 
jure a sovereign authority: not as the delegated agents 
of the governments de facto of the colonies, but in 
virtue of original powers derived from the people." 

Among the distinguished members of this Congress, 
were John Adams and Samuel Adams of Massachusetts, 
Roger Sherman of Connecticut, John Jay of New York, 
Peyton Randolph, Richard H. Lee. Patrick Henry, and 
George Washington of Virginia. Peyton Randolph was 
chosen president. The first resolution adopted was, 
" That in determining questions in this Congress each 
colony or province shall have one vote: the Congress 
not being possessed of. or at present able to procure. 
proper materials for ascertaining the importance of 
each colony. ■" 2 This rule of equal suffrage established 
because the Congress did not possess the information 
requisite for establishing a more equitable one, re- 



1 Story. 2 Jour. of Cont. Congress, I, p. 11. 



THE CONTINENTAL CONGRESS. 31 

mained in force until the adoption of the present 
Constitution, in 1789. 

The addresses to the King, to the people of Great Brit- 
ain, to the inhabitants of the colonies they represented, 
and to the inhabitants of the Province of Quebec, were 
all drawn up with great ability, and were spoken of 
by Lord Chatham in terms of the highest admiration. 
After recommending that another Congress should be 
held on the tenth of May following, provided that a 
redress of grievances was not previously obtained, this 
Congress adjourned on the twenty-sixth of October. That 
the measures adopted, if supported by the American peo- 
ple, would produce a redress of grievances, was the con- 
viction of a majority of the members of the Congress. 1 

But in this they were disappointed. The breach be- 
tween England and the colonies became wider. Dele- 
gates were, therefore, appointed to meet in Phila- 
delphia, May 10th, 1775, agreeably to the recommen- 
dation of the Congress of 1774. Some of these were 
chosen by conventions of the people, and some by the 
colonial legislatures, as in the previous Congress. With 
scarcely an exception, the delegates of 1774 were re- 
appointed in 1775. As before, twelve colonies were 
represented. A delegate also was present from a single 
parish in Georgia, and in July a convention was held 
in that colony, which voted to accede to the general 
association, and appointed delegates to the Congress. 

This Second Continental Congress continued its ses- 
sions, with occasional adjournments, till the adoption 
of the present Constitution, in 1789. Before they as- 
sembled on the tenth of May, hostilities had been 
commenced by the British troops under General Gage. 
One of the first items of business brought before the 
body was a letter from the provincial congress of 
Massachusetts, giving an account of the battles of 



1 Pitkin, I, p. 301. 



32 CIVIL GOVERNMENT. 

Lexington and Concord, with the action of that colony 
in relation thereto, and requesting the direction and 
assistance of the Congress. In this letter is the follow- 
ing suggestion: "With the greatest deference, we beg 
leave to suggest, that a powerful army on the side of 
America hath been considered by this Congress as the 
only means left to stem the rapid progress of a tyranni- 
cal ministry." * The Congress at once resolved itself 
into a committee of the whole, to take into consider- 
ation the state of America, and referred this letter from 
Massachusetts to that committee. 

Hostilities having already commenced, the necessities 
of the case compelled this Continental Congress to take 
measures to put the country into a state of defense, and 
soon they assumed a virtual control over the military 
operations of all the colonies. An army was organized, 
and on the fifteenth of June, George Washington, a 
delegate from Virginia, was unanimously elected gen- 
eral of all the forces. His commission styled him the 
General and Commander-in-Chief of the Army of the 
United Colonies. This was the first occasion on which 
the style, "The United Colonies," was adopted; it con- 
tinued to be used till the Declaration of Independence 
substituted the name, "The United States." 

The action of Congress in providing for raising an 
army and appointing a commander-in-chief was in ac- 
cordance with the general expectation of the colonies. 
Congress thus assumed the defense of the country. 
They created a continental currency by issuing bills 
of credit. They established a treasury department, and 
organized a general post-office, Dr* Benjamin Franklin 
being the Postmaster-General. In answer to the appli- 
cations from various colonies for advice as to their local 
governments, Congress recommended that such forms of 
government be established as would best secure good 



^our. Con., I, p. 77. 



INDEPENDENCE PROPOSED. 33 

order during the continuance of the dispute between 
Great Britain and the colonies. This advice mani- 
festly contemplated the establishment of provisional 
governments only. This was in November and Decem- 
ber, 1775. 

But the question of separation began to be discussed. 
On the twenty-second of April, the convention of North 
Carolina empowered their delegates in Congress "to 
concur with those in the other colonies in declaring in- 
dependency. This, it is believed, was the first direct 
public act of any colonial assembly or convention in 
favor of the measure." ' On May 15th, the convention 
of Virginia went further, and unanimously instructed 
their delegates in Congress "to propose to that respect- 
able body to declare the United Colonies free and inde- 
pendent States, absolved from all allegiance or depend- 
ence upon the crown or parliament of Great Britain." 
In accordance with these instructions, Richard Henry 
Lee, one of the delegates from Virginia, submitted a 
resolution declaring "that the United Colonies are and 
ought to be free and independent States; that they are 
absolved from all allegiance to the British crown; and 
that all political connection between them and the State 
of Great Britain is, and ought to be. totally dissolved." 
This was on the seventh of June. On the next day 
it was debated in committee of the whole. 

" No question of greater magnitude," says Mr. Pitkin, 
"was ever presented to the deliberation of a deliber- 
ative body, or debated with more energy, eloquence, 
and ability." 2 

The resolution was discussed again in committee of 
the whole on the tenth, and adopted. The committee 
recommended that the farther consideration of the reso- 
lution be postponed till the first of July, but mean- 
while that a committee be appointed to draft a decla- 



1 Pitkin, I, p. 360. 2 Hist., I, p. 362. 



34 CIVIL GOVERNMENT. 

ration of independence. This committee consisted of 
Thomas Jefferson of Virginia, John Adams of Massa- 
chusetts, Benjamin Franklin of Pennsylvania, Roger 
Sherman of Connecticut, and R. R. Livingston of New 
York. 

The postponement was immediately followed by pro- 
ceedings in the colonies, most of which either in- 
structed or authorized their delegates in Congress to 
vote for the resolution of independence ; and on the 
second day of July that resolution, which had before 
been agreed to in committee of the whole, was adopted 
by Congress itself. The committee who had been in- 
structed to prepare the declaration, had reported on the 
twenty-eighth of June, and on the fourth day of July 
that paper was adopted. 

After citing reasons for the dissolution of the po- 
litical bands which had connected them Avith Great 
Britain, the Declaration concludes : " We, therefore, the 
Representatives of the United States of America, in 
General Congress assembled, appealing to the Supreme 
Judge of the world for the rectitude of our intentions, 
do, in the name, and by authority of the good people 
of these colonies, solemnly publish and declare, that 
these United Colonies are, and of right, ought to be, 
Free and Independent States." 

This was the beginning of the nation. Whether it 
could maintain its independence, thus boldly declared, 
was to be decided by the sword. Should the people 
fail in the bloody struggle, they would never be known 
as a nation upon the page of history. Should they 
succeed, their national existence would date from the 
fourth of July, 1776. 

This Declaration of Independence was not the work 
of States, for no States existed. It was the people of the 
thirteen United Colonies who had through their repre- 
sentatives declared themselves absolved from their alle- 
giance to Great Britain. The nation and the States 



INDEPENDENCE DECLARED. 35 

were born on the same day. Hitherto, there had been 
colonies and the mother country, to which all the 
colonists acknowledged allegiance. Now, the sover- 
eignty was no longer in Great Britain, but in the 
people themselves, who claimed to be a separate polit- 
ical community; and the individual colonies had be- 
come States. From that day the nation itself, through 
Congress, exercised all the functions of government. 
There was a real government, though as yet no writ- 
ten constitution; and the relations of the States to the 
general government were in substance the same as 
they are now. 



CHAPTER III. 

THE ARTICLES OF CONFEDERATION — THEIR FAILURE — THE CONVENTION TO 
FORM A CONSTITUTION. 

Soon after the Declaration of Independence was made, 
a committee, previously appointed, reported a draft of 
the Articles of Confederation. These were debated from 
time to time, and, after several modifications, were finally 
agreed to by Congress, November 15, 1777. They were 
to become binding when ratified by all the States. Ten 
States ratified them in July, 1778; New Jersey, Novem- 
ber 26, and Delaware, February 22, 1779. Maryland 
withheld her approval till March 1st, 1781. 

This was nearly five years after the Declaration of Inde- 
pendence. During this time, the war had been carried on 
and all the affairs of the nation had been conducted, by 
Congress. A treaty had been made between France and 
the United States, which was concluded at Paris, Febru- 
ary 6th, 1778, and ratified by Congress May 4th of that 
year. The surrender of Cornwallis, which virtually 
closed the war, took place on the 17th of October, 1781, 
about six months after the adoption of the Articles of 
Confederation. The successful prosecution of the War 
of the Revolution could not, then, have been owing to the 
influence or efficacy of these Articles. On the contrary, 
there is good reason to believe that, had these Articles 
been adopted in 1776, the final result would have been 
very different from what it was. 

These Articles were as erroneous in theory as they 
were inefficient in practice. The Declaration of Inde- 
pendence was made in the name of the people of the 

(36) 



THE ARTICLES OF CONFEDERATION. 37 

United States. The first sentence alludes to them as 
:i one people" that had found it necessary to dissolve the 
political bands which had connected them with another 
people, and to assume among the powers of the earth 
the separate and equal station to which they were 
entitled. The Constitution speaks the same language : 
" We, the People of the United States, do ordain and 
establish this Constitution for the United States of 
America." 

But the Articles of Confederation do not purport to 
come from the people. They were the work of the 
States. The instrument is styled " Articles of Confed- 
eration and Perpetual Union between the States of New 
Hampshire, Massachusetts Bay," etc. It was drawn up 
and adopted by Congress, and sent to the States for rati- 
fication. Being thus the work of the States, and not of 
the people, we are not surprised at the declaration in it, 
that "each State retains its sovereignty, freedom, inde- 
pendence," etc. 

The Articles contained much that was good, and some 
things not good; and much was omitted which was 
essential to a Constitution. It provided for one House 
of Congress, to be composed of delegates appointed 
annually by the several States, as each should direct, no 
State to be represented by more than seven or less than 
two, and no person being capable of serving as a delegate 
more than three years in six. Each State was to pay its 
own delegates, and could recall them at pleasure. The 
voting was to be by States. 

Congress was invested with power as to war and 
peace, treaties and alliances. Congress could decide, on 
appeal, disputes between States, could regulate the 
alloy and value of money, had charge of all postal 
matters, etc., etc. ; but no important action could be 
taken without a vote of nine States— two-thirds of the 
whole. 

No Executive Department was provided, and no 



38 CIVIL GOVERNMENT. 

Judiciary. Taxes were to be apportioned among the 
States, but Congress had no authority to levy them. 
Commerce was in the control of the States. Each State 
could lay duties and imposts. Congress had no power 
to enforce its own measures. 

" In the very modes of its operation there was a mon- 
strous defect, which distorted the whole system from 
the true proportions and character of a government. 
It gave to the Confederation the power of contracting 
debts, and at the same time withheld the power of pay- 
ing them. It created a corporate body, formed by the 
Union and known as the United States, and gave to it 
the faculty of borrowing money and incurring other 
obligations. It provided the mode in which its treas- 
ury should be supplied for the reimbursement of the 
public credit. But over the sources of that supply, it 
gave the government contracting the debt no power 
whatever. Thirteen independent legislatures granted 
or withheld the means which were to enable the Gen- 
eral Government to pay the debts which the general 
Constitution had enabled it to contract, according to 
their own convenience or their own views and feelings 
as to the purposes for which those debts had been 
incurred."* 1 

As each State paid its own delegates in Congress, 
the smaller the number, the less the expense. Often- 
times a State would have no representative. The 
Treaty of Peace, signed September 3d, 1783, could not be 
ratified till January 14th, for want of representatives, 
and then there were but twenty-three members present. 
In April of that year there were present twenty-five 
members from eleven States, nine being represented by 
two each. Three members, therefore — one-eighth of the 
whole — could negative any important measure. 

The Treaty of Peace was made by the United States 



Cnrtis's History of the Constitution, I, p. 181. 



THE ARTICLES OF CONFEDERATION. 39 

with Great Britain, but Congress could not enforce its 
provisions. Various articles were constantly violated 
by the States, and Congress could not prevent it. 
Great Britain declared her readiness to carry the 
treaty into effect when the United States would do 
the same. 

As the General Government could not carry out its 
own treaties with foreign powers because of the re- 
fusal of the States, so it could not protect a State 
against insurrection or rebellion. The outbreak in 
Massachusetts in 1786, known as Shays's Insurrection, 
which embraced a fifth of the inhabitants in several 
of the most populous counties, caused great alarm 
through the country. Armed men surrounded the court- 
houses, and finally the insurgents were embodied in 
arms against the Government. The National Govern- 
ment was powerless to aid the State; the Articles 
of Confederation gave Congress no authority in such 
a case. 

The weakness of the league of States was made abun- 
dantly manifest. It is not surprising that Washington 
should write as he did to a member of Congress, "You 
talk, my good sir, of employing influence to appease 
the present tumults in Massachusetts. * * * Influence 
is not government. Let us have a government by which 
our lives, liberties, and properties will be secured, or 
let us know the worst at once." 1 

The weakness of the Confederation, especially in its 
relation to the revenue, had been early seen by Wash- 
ington. He saw " that to form a new constitution, 
which would give consistency, stability, and dignity to 
the Union, was the great problem of the time." 2 So, 
too, Mr. Hamilton, without doubt the ablest statesman 
of his age, was convinced before the Articles of Con- 
federation went into operation that they could never 



Curtis, I, p. 274. 2 Ibid, p. 202. 



40 CIVIL GOVERNMENT. 

answer the purposes of government. As early as 1780, 

he sketched the outlines of a system of government 
for the United States, embodying almost every feature 
of our present Constitution. 1 

In May, 1785. Governor Bowdoin of Massachusetts 
suggested the appointment of special delegates from 
the States to define the powers with which Congress 
ought to be invested. A resolution was accordingly 
passed by the legislature of Massachusetts, declaring 
the Articles of Confederation inadequate, and calling a 
convention of delegates from all the States. But the 
matter was not brought before Congress by the mem- 
bers of that body from Massachusetts. 

In January, 17S6, the legislature of Virginia ap- 
pointed commissioners to meet with those from other 
States to consider the subject of trade, with reference 
to a uniform system of commercial regulations. The 
meeting was held in September, at Annapolis. Mary- 
land. Only five States were represented; viz., Xew York, 
Xew Jersey, Pennsylvania, Delaware, and Virginia; but 
great results followed from the Convention. The com- 
mittee representing so few States did not enter upon 
the proper business of the Convention, but prepared a 
report, drawn up by Mr. Hamilton, expressing their 
unanimous conviction that a general convention should 
be called to devise such provisions as might render 
"the Constitution of the Federal Government adequate 
to the exigencies of the Union." 

This report, though addressed to the States repre- 
sented, was also sent to Congress as well as to the 
other States. That body, on the twenty-first of Febru- 
ary, 1787, adopted the following resolution : 

" Resolved, That, in the opinion of Congress, it is ex- 
pedient that, on the second Monday in May next, a 
convention of delegates, who shall have been appointed 



i Curtis. I, p. 204. 



; 



THE CONVENTION OF 1787. 41 

by the several States, be held at Philadelphia, for the 
sole and express purpose of revising the Articles of 
Confederation, and reporting to Congress and the several 
legislatures, such alterations and provisions therein as 
shall, when agreed to in Congress and confirmed by the 
States, render the Federal Constitution adequate to the 
exigencies of government, and the preservation of the 
Union.'' 

In accordance with this recommendation, all the 
States but Rhode Island appointed delegates, and the 
Convention assembled at Philadelphia, Monday, May 
14th, 1787. The organization was not, however, ef- 
fected, for want of a quorum, till the twenty-fifth, 
when George Washington was unanimously elected 
President. 

This Convention contained many very eminent men. 
George Washington, Alexander Hamilton, James Mad- 
ison, Benjamin Franklin, Rufus King, Roger Sherman, 
James Wilson, Gouverneur Morris, and Edmund Ran- 
dolph would have been distinguished in any assembly. 
There were fifty-five members in all, most of whom 
were illustrious for their character and public services. 
Dr. Franklin had been a member of the Convention of 
1754. Three had been present at the Congress of 1765. 
Seven had been members of the First Continental 
Congress. Eight were among the signers of the Dec- 
laration of Independence. Eighteen were at the same 
time delegates to the Continental Congress; and of the 
whole number there were only twelve who had not sat 
at some time in that body. 1 

If the Convention was composed of extraordinary 
men, it had before it extraordinary work. They were 
to form a complete system of republican government, 
with no example for their guidance. This was their 
real work, though this was not distinctly present 



Hildreth, III, p. 483. 
C. G. 4. 



42 CIVIL GOVERNMENT. 

to all of them at first. Some were thinking only of 
amending the Articles of Confederation; but Hamil- 
ton and Madison and others were prepared to enter 
at once upon the construction of the organic law for 
a supreme general government, without regard, either 
in form or substance, to the existing Articles of Con- 
federation. 1 

Soon after the organization of the Convention, Mr. 
Randolph submitted a series of resolutions, embodying 
his views of the government desirable to be established. 
They were also the views of Mr. Madison. Mr. Pinck- 
ney, of South Carolina, submitted, on the same day, a 
draft of a Constitution. All these were referred to the 
Committee of the Whole, and the discussion was com- 
menced. The first resolution adopted in Committee 
of the Whole was the first of the series offered by Mr. 
Randolph, somewhat modified. It was as follows : 
That it is the opinion of this Committee 
that a national government ought to be established, 
consisting of a supreme Legislative, Judiciary, and 
i ;utive. M 

On the thirteenth of June, the Committee reported 
iee it resolutions to the Convention. On the fif- 
teenth. Mr. Patterson of Xew Jersey offered resolutions 
expressing the views of those who favored amending 
the Articles of Confederation, aud opposed the forma- 
tion of a new Constitution. The whole subject was 
then again referred to the Committee of the Whole, and 
debated till the nineteenth, when the Committee report- 
ed adversely to Mr. Patterson's plan, and submitted the 
resolutions formerly reported. These resolutions were 
debated in the Convention from day to day. some great 
questions, like that of suffrage in the Senate and 
House of Representatives, being occasionally referred 
to a special committee. On the twenty-third of July. 



1 Towle's Analysis, p. 31. 



THE CONSTITUTION ADOPTED. 43 

it was voted to appoint a Committee of Detail, to whom 
should be referred the proceedings of the Convention, 
except what related to a supreme executive, for the 
purpose of reporting a Constitution embodying what 
had, been agreed upon. This Committee, appointed by 
ballot the next day, consisted of Messrs. Rutledge of 
South Carolina, Randolph of Virginia, Gorham of 
Maine, Ellsworth of Connecticut, and Wilson of Penn- 
sylvania. The propositions of Mr. Patterson and of 
Mr. Pinckney were also referred to this Committee. On 
the twenty-sixth, after some instructions to the Com- 
mittee of Detail, the Convention adjourned to the sixth 
of August. 

This Committee reported at the time appointed, 
and their draft was considered by the Convention till 
the eighth of September, when a committee of five 
was appointed to revise the style and arrange the 
Articles. This Committee consisted of Messrs. John- 
son of Connecticut, Hamilton of New York, Morris 
of Pennsylvania, Madison of Virginia, and King of 
Massachusetts. On the twelfth, they reported the Con- 
stitution ; also a letter to Congress to accompany the 
Constitution. 

The discussions were continued until Saturday, the 
fifteenth of September, when the Constitution, as 
amended, was agreed to, all the States concurring. 1 
It was then ordered to be engrossed, and on the 
Monday following it was signed by the members, 
after striking out 40,000 as the basis for representa- 
tion and inserting 30,000. The form of signature 
was this : " Done in Convention, by the unanimous 
consent of the States present, the seventeenth day of 
September, in the year of our Lord, 1787, and of the 
Independence of the United States of America, the 
twelfth." 



The votes had been bv States, as in the Continental Congress. 



44 CTYIL GOYERXMESTT. 

Two of the three New York delegates having left 
the Convention, that State was technically not present, 
though Alexander Hamilton's signature was attached. 
Mr. Gerry of Massachusetts and Messrs. Randolph and 
Mason of Virginia did not sign the Constitution, 
though it was signed by a majority of the delegates 



CHAPTER IV. 

THE CONSTITUTION OF THE UNITED STATES. 

We, the People of the United States, in order to form a 
more perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defense, promote the general 
welfare, and secure the blessings of liberty to ourselves and 
our posterity, do ordain and establish this Constitution for 
the United States of America, 

This first sentence of the Constitution is often called a 
" preamble." But that term was not applied to it by 
those who framed the Constitution, and is not found in 
the original manuscript. It is not a preamble, either in 
form or substance, but is the enacting clause — an inte- 
gral part of the Constitution itself. A preamble gives 
reasons why a resolution should be adopted or an enact- 
ment made, but it is no part of the resolution or enact- 
ment. The enacting clause, on the contrary, is manda- 
tory. No other part of a statute is more important.. 
Such is the introductory sentence of the Constitution. 
"We, the People of the United States," for certain pur- 
poses, "do ordain and establish this Constitution for the 
United States of America." "The enacting clause is 
perfectly authoritative in its source, — the people ; per- 
emptory in its action, — ordain and establish ; definite 
and exact in its subject, — this Constitution; and dis- 
tinct, broad, and extensive in its purposes and ends, 
embracing the liberty, safety, and welfare of the whole 
Union, and all its people." l 



1 Farrar's Manual of the Constitution, p. 88. 

(45) 



46 THE CONSTITUTION. 

We have here (1) the authority — We, the People of the 
United States; (2) the ends for which the Constitution is 
made, in six particulars; (3) the explicit ordaining of 
this Constitution, including this introductory clause ; (4) 
the nation for whom it is made, — " the United States of 
America." 

The Constitution was ordained by the people of the 
United States as a nation. The language presupposes 
the unity, the nationality, and the sovereignty of the 
people. The nation began to exist on the fourth of July, 
1776. The people then cast off their allegiance to Great 
Britain, and became a separate nation, possessing the 
rightful sovereignty of the country. They became 
united in a national corporate capacity, as one people, 
and took for their national designation the name, the 
" United States of America." From that day to the pres- 
ent, they have been known to the world by this name. 
Wherever in the Constitution these words occur, or the 
briefer form, the " United States," they signify the nation 
as a whole ; wherever the word " States" occurs it signi- 
fies the States considered separately, or as distinguished 
from the nation. 

The purposes for which the Constitution was formed 
are admirably stated : " To form a more perfect union, 
establish justice, insure domestic tranquillity, provide 
for the common defense, promote the general welfare, 
and secure the blessings of liberty to ourselves and our 
posterity." 

The Congress of the Confederation called the Constitu- 
tional Convention for the purpose of forming "a firm 
national government * * adequate to the exigencies 
of government and the preservation of the Union." The 
Union under the Confederation was imperfect and unsat- 
isfactory, and the framers of the Constitution determined 
to submit to the people an instrument which should be 
more efficient than the Articles of Confederation. It was 
a union of the people of all parts of the country, as con- 



THE CONSTITUTION. 47 

stituting one nation, which they wished to secure, 
instead of a mere league of States. Under the Articles of 
Confederation, there was no distinct judicial depart- 
ment, as there was no executive, while the new Consti- 
tution provided for both. The domestic tranquillity had 
been greatly interfered with because of the power given 
to the individual States ; the central government having 
little more than the power to recommend. The national 
government would insure this domestic tranquillity. 
The words "common defense" and "general welfare" 
were introduced near the close of the Convention, but 
they met with no opposition. No language could be 
more comprehensive than this, "to promote the general 
welfare." 

For these various purposes the people of the United 
States ordain this Constitution for themselves. It is 
the organic, fundamental law for the whole people of the 
country whose corporate name is the United States of 
America. The nation, as such, establishes this Consti- 
tution, making it sufficient for all the exigencies of gov- 
ernment. As the organic law of the nation, it is every- 
where supreme. Subordinate governments may continue 
and new ones be established, but always in conformity 
with this. 

The Constitution contains seven articles, which are 
subdivided into sections. In the original there are 
no headings to the articles. Both articles and sections 
are numbered. 

Article 1st relates to the Legislative power. 

Article 2d, to the Executive power. 

Article 3d, to the Judicial power. 

Article 4th, to various subjects. 

Article 5th, to the mode of amending the Constitution. 

Article 6th, to the validity of debts contracted before 
the adoption of the Constitution, and to its supremacy. 

Article 7th, to the mode of its ratification. 

Besides these seven articles, fifteen amendments have 



48 THE CONSTITUTION. 1. 1. 1. 

been made to the Constitution, which are as binding as 
the original articles. 

ARTICLE I. 
THE LEGISLATIVE DEPARTMENT. 

See. 1. — All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall con- 
sist of a Senate and House of Representatives. 

Under the Confederation, the whole governmental 
authority, was vested in Congress. There was no Execu- 
tive department, and no Judicial. The first resolution 
adopted in the Constitutional Convention was, that a 
national government ought to be formed, consisting of 
supreme Legislative, Executive, and Judicial depart- 
ments. Most legislative bodies have two houses. This 
is true of all the existing State governments, and was 
true of all at the time the Constitution was framed, 
except Pennsylvania and Georgia, which had but one 
each. The Continental Congress had but one house. 
While there is a general distribution of powers among 
the three great departments of the government, the 
exercise of these powers is not absolutely exclusive. 
We shall see that the President has a qualified veto on 
legislation, and that the Senate sometimes acts as a 
court, and sometimes transacts executive business. 

Sec. 2, Clause 1. — The House of Representatives shall 
be composed of members chosen every second year by the 
people of the several States ; and the electors in each State 
shall have the qualifications requisite for electors of the most 
numerous branch of the State legislature. 

Under the Confederation, the members of Congress 
were chosen annually, and as the legislature of each 
State should direct. They could also be recalled. The 
Constitution makes the term of service of the Repre- 
sentatives two years, and requires that the election shall 
be by "the people." In England, a member of the 
House of Commons is elected for seven years. 



1. II. 2. THE HOUSE OF REPRESENTATIVES. 49 

Those who vote for Representatives to Congress must 
have the qualifications requisite to enable them to vote 
for members of the lower house of the State legislature, 
but it is not clear by whom these qualifications are to 
be prescribed. The common opinion has been that the 
State prescribes them. The Constitution says simply 
that the qualifications must be the same ; so that who- 
ever can vote for the State representative can vote for 
the National one also, and vice verm. The Constitution 
does say that Representatives to Congress shall be elected 
by the people; thus virtually saying that the members of 
the most numerous branch of the State legislature shall 
also be elected by the people. 

Clause 2. — No person shall be a Representative who 
shall not have attained to the age of twenty-five years, and 
been seven years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

The qualifications of a Representative relate to age, 
citizenship, and inhabitancy; he must be twenty-five 
years old, a citizen of the United States for seven years, 
and an inhabitant of the State where he is elected. It 
has been decided that the States can not prescribe addi- 
tional qualifications. 

According to the Articles of Confederation, no person 
could be a Representative in Congress more than three 
years in six ; and each State prescribed the qualifications 
of its own Representatives. In the British Parliament 
the required age is twenty-one years ; and the same age 
is required in the different States of our Union. The 
Representative must have been a citizen of the United 
States for seven years. The United States is spoken of 
as one countiy, a nation. It would be nonsense to say a 
Representative must have been seven years a citizen of 
the thirteen States. Yet a United States Senator, in an 
argument for secession, once said, on the floor of the Sen- 
C. G. 5. 



50 THE CONSTITUTION. 1. II. 3, 

ate, that he pitied the stupidity of any one who supposed 
there was or could be a citizen of the United States ! 
There was stupidity somewhere plainly enough, and 
with the Constitution before us it is not difficult to see 
where it belonged. 

The Representative must be an inhabitant of the State 
in which he is chosen, but not necessarily of the district. 
In England, members of Parliament often represent 
boroughs and cities other than those in which they live. 
No such case has occurred in this country, however. 
The Constitution does not require the Representative 
to be a voter. If a State should come into the Union 
through conquest or purchase, the inhabitants becom- 
ing citizens thereby, the seven years' citizenship would 
not be insisted on. 

Clause 3. — Representatives and direct taxes shall be 
apportioned among the several States which may be in- 
cluded within this Union, according to their respective 
numbers, which shall be determined by adding to the whole 
number of free persons, including those bound to service 
for a term of years, and excluding Indians not taxed, 
three-fifths of all other persons. The actual enumeration 
shall be made within three years after the first meeting 
of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they 
shall by lav: direct. The number of Representatives shall 
not exceed one for every thirty thousand, but each State 
shall have at least one Representative ; and until such 
enumeration shall be made, the State of Xew Hampshire 
shall be entitled to choose three; Massachusetts, eight; 
Rhode Island and Providence Plantations, one ; Connecti- 
cut, five ; Xew York, six; Xew Jersey, four; Pennsyl- 
vania, eight; Delaware, one; Maryland, six; Virginia, 
ten; North Carolina, five; South Carolina, five; and 
Georgia, three. 



1. II. 3. THE HOUSE OF REPRESENTATIVES. 51 

When the Continental Congress commenced its ses- 
sions, September 5th, 1774, the following resolution 
was adopted : 

"Resolved, That in determining questions in this Con- 
gress, each colony or ■province shall have one vote: the 
Congress not being possessed of, or at present able to 
procure, proper materials for ascertaining the impor- 
tance of each colony." 

"As if foreseeing the time when population would 
become of necessity the basis of congressional power, 
they inserted, in the resolve determining that each 
colony should have one vote, a caution that would 
prevent its being drawn into precedent." 1 

The Articles of Confederation followed the same 
rule, and thus this method of voting prevailed till 
the Constitution went into operation in 1789. When 
the Convention decided to form two legislative bodies, 
the question of voting came up. Some were in favor 
of an equal representation by States in each branch, 
while others favored a popular basis, and a propor- 
tionate representation in each House. In general, the 
larger States wished the representation to be in pro- 
portion to the importance of the State, while the 
smaller States favored an equality, as in the Conti- 
nental Congress. 

It was first decided that in the House of Represent- 
atives suffrage should not be like that under the 
Confederation, but according to some equitable ratio 
of representation. The question then arose as to the 
)asis of that ratio. Should the different States send 
Representatives in proportion to their population or 
their wealth?- And if according to population, who 
were the people? Should the number of representa- 
tives be according to the number of voters, or as the 
white population, or as the free population, or as the 



Curtis, I, p. 17. 



52 THE CONSTITUTION. 1. II. 3. 

whole? It was decided that the representation from 
the States should be "according to their respective 
numbers," that is, as the whole population, but that 
only three-fifths of the slaves should be counted. 

According to the Articles of Confederation, the votes 
were by States — each State, whether large or small, 
having one vote. But the quotas for the support of 
the General Government were as the values of real 
estate in the several States. In 1783, a proposition 
was made to alter that provision so that each State 
should pay "in proportion to the whole number of free 
inhabitants, and three-fifths of the number of all other 
inhabitants of every sex and condition, except Indians 
not paying taxes in any State." ] The Convention fol- 
lowed, both as to representation and direct taxes, the 
rule approved by the majority of the Continental Con- 
gress in 1783 for the payment of taxes, and this was 
the origin of the three-fifths rule. 

The adoption of this rule was favorable to the Slave 
States as it increased the number of their Represent- 
atives; it was unfavorable as it increased their pro- 
portion of direct taxes. The advantage was greater 
than the disadvantage, however, as they enjoyed the 
increased number of Representatives continually, while 
direct taxes have been levied but five times since the 
adoption of the Constitution. 

Slavery having been abolished in 1865, by an amend- 
ment to the Constitution, all the colored population 
must be counted in determining the number of Repre- 
sentatives from a State. If this class of the popula- 
tion could not vote, the Southern States would have 
nearly twice as many Representatives, in proportion 
to the number of voters, as the Northern States. Thus, 
by the census of 1860, Pennsylvania had 2,893,266 
white inhabitants, and twenty-four Representatives. 



1 Jour. Cont. Congress, VIII, p. 123. 



1. II. 3. THE HOUSE OF REPRESENTATIVES. 53 

North Carolina, South Carolina, Georgia, Alabama, 
Florida, Mississippi, and Louisiana had 2,829,785 white 
inhabitants, and thirty-nine Representatives. If the 
white inhabitants and three-fifths of the blacks gave 
them thirty-nine Representatives, these States would 
have fifty Representatives, counting all the blacks; 
that is, with a less voting population than Pennsyl- 
vania they would have more than twice as many 
Representatives. To remedy this inequality, the Four- 
teenth Amendment provides that if the right to vote 
is denied to any class of citizens, the basis of repre- 
sentation shall be reduced, in proportion. 

The basis of representation was reported at forty 
thousand by the Committee, and so remained till the 
last day of the Convention, when it was changed to 
thirty thousand, General Washington himself advoca- 
ting the change. This is said to have been the only 
occasion on which he entered into the discussions of 
the Convention. 

A question arose early in Washington's administra- 
tion as to the construction of this clause. Should the 
number of Representatives be determined by dividing 
the whole population of the United States by the num- 
ber taken as the basis of representation, or by divid- 
ing the population of the respective States by that number, 
and taking the sum of the quotients. The former 
method would give the largest number of Representa- 
tives, and was adopted by Congress in the bill first 
passed. But the bill was returned by President Wash- 
ington, as conflicting with the language of the Con- 
stitution. Congress yielded to the judgment of the 
President; and the method then adopted, of dividing 
the population of each State by the basis of represen- 
tation, continued till 1842, when an act of Congress 
provided that there should be one Representative for 
every 70,680, and for a fraction greater than one-half 
of this number. By act of May 23d, 1850, it was pro- 



54 THE COXSTITrTIOX. 1. H. 3. 

Tided that the whole population of the United States 
should be divided by the number 233 ? and the quotient 
be the ratio. With this ratio the population of each 
State is divided, the quotient being the number of its 
Representatives. The number of Representatives nec- 
essary to make 233 are given to the States having the 
larsest tractions. 

The first enumeration of the people was made in 
17 nd in 1800 r and so on. After the census 

returns have been made. Congress provides by law for 
the representation, to take effect March 4th of the 
third year after. The Constitution provided for 65 
members for the First Congress. In March. 1793. there 
were 105; in 1S03. 1-41 : in 1813. 181: in 1823. 212: 
in 1833. 240: in 1843, 223. In 1850. as stated above, 
the number was fixed at 233. and the Secretary of the 
Interior was directed to ascertain the number to which 
each State was entitled, and make certificate of the 
same to the Governors. In all the cases previous to 
this time the specific number for each State had been 
given in the act of Congress. Before an election had 
been held under the act of 1850. Congress changed the 
number from 233 to 234. to remain till the next appor- 
tionment. The additional one was given to California. 
In 1862 the number for the next ten years was fixed at 
241, the eight additional ones (to 233; being appor- 
tioned to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, 
Minnesota, Vermont, and Rhode Island. 

The number of Representatives for the different 
decades, and the number of inhabitants for a Repr — 
ative are as follows : 

Period. No. of Membe Ratio of Population. 

: -; 9-1793 65 

1793-1803 105 33.000 

1803-1813 141 33. 

1.813-1*. 181 35.000 

.3-1833 212 40.000 

1833-1843 240 47,700 



1. II. 4. THE HOUSE OF REPRESENTATIVES. 55 

Period. 2s o. of Members. Ratio of Population. 

1843-1853 223 70,680 

1853-1863 234 93,500 

1863-1873 241 127,941 

1873-1883 292 130,533 

The actual number of Representatives has usually been 
greater than that here given, owing to the admission of 
new States. Thus the Forty-second Congress (1871- 
1873) had 243, instead of 241 ; Nevada having been 
admitted in 1864, and Nebraska in 1867. 

Each organized Territory is allowed by law to send one 
delegate to Congress, who may participate in the discus- 
sions, but can not vote. In the Forty-second Congress 
there were nine delegates from the Territories, and one 
from the District of Columbia. 

Clause 4. — When vacancies happen in the representation 
from any State, the executive autliority thereof shall issue 
writs of election to fill such vacancies. 

Vacancies may be created by death, resignation, re- 
moval, or accepting incompatible offices. All these cases 
have occurred. The person thus elected to fill a vacancy 
serves only the remainder of the term. 

Clause 5. — The House of Representatives shall choose 
their Speaker and other officers, and shcdl have the sole 
power of impeachment. 

The Speaker is the presiding officer of the House. 
The presiding officer of the Continental Congress was 
styled President. Where a legislature is composed of two 
houses, the presiding officer of the upper house is usually 
called President, and of the lower house. Speaker. The 
British House of Commons choose their Speaker, but the 
approbation of the Crow r n is necessary. 

The other officers of the House of Representatives are 
a Clerk, Sergeant-at-Arms, Door-keeper, Postmaster, and 
Chaplain. 

The office of Clerk is one of great importance, and is 
usually filled by an ex-member of Congress. The Clerk 



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1. III. 1. THE SENATE. 57 

House of Representatives ; others would have the Presi- 
dent appoint from those nominated by the State legisla- 
tures ; others would have them chosen by the House of 
Representatives; and others still proposed an election by 
the people. 

As to the term of office, some advocated a life tenure, 
or during good behavior; some, a term of nine years; 
others, seven; others, six; and others, four. 

The question of voting was the most difficult. As 
in the Continental Congress the States were on an 
equality as to their votes, the smaller States wished 
the same rule to hold under the Constitution; while 
the larger States claimed that an equality of votes in 
either House would be unjust. The smaller States fin- 
ally conceded that in the House of Representatives 
the number of members should be in proportion to 
population; but they insisted that in the Senate the 
States should be equal. But the larger States were 
tenacious as to the Senate as well as to the House; 
and the Committee of the Whole reported, "That the 
right of suffrage in the second branch of the national 
legislature ought to be according to the rule estab- 
lished for the first." This report was adopted by the 
Convention ; but the matter was subsequently re- 
ferred to a committee of one from each State, who 
reported the rule as it now stands. The final vote 
was: Affirmative — Connecticut, New Jersej T , Delaware, 
Maryland, North Carolina — 5 ; Negative — Pennsyl- 
vania, Virginia, South Carolina, Georgia — 4. Massa- 
chusetts divided. "So that this greatest and most dif- 
ficult of all the important questions which the Con- 
vention was called upon to solve, was carried by less 
than a majority of the States present, and by the 
concurrence of less than one-third of the represented 
population." * 



Towle, p. 69. 



58 :z: ; ::r : i. m. i. 

iison strongly opposed the principle finally 
adopted. In his letter to Mr. Sparks, he said the 
Gordian knot of the Convention was the question be- 

:/„•.-: i* : ~ : 
voting in the Senate; the latter claiming, the former 

By the Articles of Confederation each State might 
send not more than ielegaies to Congress 

:han two. They were elected annually, but no 
one could sit more than three years in six. The 
States could recall their delegates at any time. In- 
:: r. ~ : -: :_: : t. L -:. : T : . .:. >-:. " 
two Senators, and as many Representatives as her 
population entitles her to; that there is nothing to 
prevent a Senator or Representative from being re- 
turned as often as his constituents desire; and thai, 
when a Senator or Representative has been elected, 
the State has no power to recall him.* 

Though all th- States have the same number of 
*7-...:.:s. „::! ri::. r* 7 r. :.:•:: :_:-.s :vt v;: T . :r.: ; :- r.:: 
voting by States, as was done in the Con- 
tinental Congress. If both the Senators of a State are 
ent, and vote on opposite sides of a question, their 

- "z ' _:>:: - 

tion. But if only one of two delegates from a State 

present in the Continental Congress, his vote 

could not be counted; under the present Constitution 

:hr v:*t :: :n~ is ::--:_:ri ~i.r::.rr :.:« ::'.'.-:. .^n is 

The Constitution does not prescribe the precise 
method in which the legislature of a State shall 
choose the Senators, whether by joint ballot or by 



1 Elliot, L p. 508. 

2 Thomas H. Benton was thirty yews a Senator from Missouri. 

r; : ...r",- S -.-_■..-: :.:.." H-r^-- ~.~:l-:r. -zn ^'.~::?i :vi: vine: d:h 

- .: - 



I. III. 2. THE SENATE. 59 

concurrent resolution. It is not properly an act of 
legislation, and the Governor of a State has no par- 
ticipation in it, as, in some States, he has in ordinary 
legislation. 1 

On the 25th of July, 1866, Congress passed an " Act 
to regulate the times and manner of holding elections 
for Senators in Congress." It provides, that the legis- 
lature of each State, which shall be chosen next pre- 
ceding the expiration of the time for which any Sen- 
ator was elected, shall, on the second Tuesday after 
the meeting and organization thereof, proceed to elect 
a Senator as follows : 

Each House shall name a person for Senator by a 
viva voce vote ; the next day at noon the two Houses 
shall meet in joint assembly, and if the same person 
shall have received a majority of all the votes in each 
House he shall be declared duly elected. 

If no person has received such majorities, the joint 
assembly shall choose by a viva voce vote; and whoever 
shall receive a majority of all the votes cast, a ma- 
jority of each House being present, shall be declared 
elected. 

If no person is elected the first day, the joint assem- 
bly shall convene each day at twelve o'clock and take 
at least one vote each day during the session, or until 
a Senator is elected. 

If a vacancy exists when the legislature convenes, 
the same steps shall be taken ; and if a vacancy occurs 
during the session of the legislature, they shall proceed 
to elect on the second Tuesday after they have had 
notice of the vacancy. 

Clause 2. — Immediately after they shall be assembled in 
consequence of the first election, they shall be divided as 



1 New York had no Senators for the first few months of the First 
Congress, because of disagreement between the two branches of 
the legislature. For the same reasons she had no Electors. 



60 THE CONSTITUTION. 1. III. 2. 

equally as may be into three classes. The seats of the Sen- 
ators of the first class shall be vacated at the expiration of 
the second year, of the second class at the expiration of the 
fourth year, and of the third class at the expiration of the 
sixth year, so that one-third may be chosen every second 
year ; and if vacancies happen by resignation, or otherwise, 
during the recess of the legislature of any State, the Execu- 
tive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies. 

When the Senate convened, March 4th. 1789, there were 
twenty Senators present : Rhode Island and North Caro- 
lina had not yet ratified the Constitution, and New York 
had not elected her Senators. These twenty were divided 
by lot among the three classes, making seven of the first, 
seven of the second, and six of the third. When the two 
Senators from Xew York took their seats. July 26th. one 
was placed in the third class, and the other in the first, 
making eight of the first class, and seven of each of the 
others. The North Carolina Senators, who came in 
November 27th, fell into the second and third classes. 
The classes had now eight each in them. Thus the 
Senators of each new State have been placed in different 
classes, that their terms might not expire at the same 
time ; and the classes have been kept substantially equal, 
so that the terms of one-third of the Senators may expire 
every second year. 

If a Senator from a new State is placed in the third 
class, we are not to infer that his term will be six years. 
As the Constitution went into operation in 1789, the 
terms of the Senators of the first class would expire in 
1791. The terms of their successors would expire in 
1797, 1803, 1809, and so on. The terms of the Senators 
of the second class would expire in 1793. 1799. 1805. etc.; 
and those of the third class in 1795. 1801, 1807, etc. The 
Senators from Ohio took their seats in 1803. One of 
them was plared in the first class, and the other in the 



1. III. 2. THE SENATE. 61 

third. As terms of Senators of the first class expire in 
1809, 1815, etc., the one in the first class would remain 
in office six years, while the one in the third class 
would remain but four, the terms of the third class ex- 
piring in 1807. 

The Senate is a permanent body, while the House of 
Representatives is changed every two years. As the 
Constitution went into operation on the fourth of March, 
1789, the term of office of every Senator, as well as Repre- 
sentative, ends on the fourth of March of a year de- 
noted by an odd number. A Congress is measured by 
the term of office of the Representatives; the first ex- 
tending from the fourth of March, 1789, to the fourth 
of March, 1791. The Forty-fourth Congress began 
March 4th, 1875, and ended March 4th, 1877. 

When a vacancy is temporarily filled by executive 
appointment, the Senator thus appointed holds his office 
till the close of the next succeeding term of his State 
legislature. 1 

The legislature of a State sometimes adopt resolutions 
in which their Representatives in Congress are "re- 
mitted," and their Senators "instructed." to vote for 
certain measures ; thereby implying that the legislature 
have the right to v> instruct" their Senators, while they 
have not the right in regard to their Representatives. 
But there is no right of instruction in either case. The 
Constitution prescribes the mode of election for the Sen- 
ator and for the Representative: one is elected by the 
legislature, and the other by the people of his district. 
The mode is immaterial ; it is but a mode. Once elected, 
the Senator, as well as the Representative, must be 
guided by his own enlightened judgment, and can not 
be instructed by those who elected him. Xeither is the 
Senator or Representative to consult exclusively the 
interests of his own State or district. He is a member 



1 Towle, p. 72. 



62 THE CONSTITUTION. 1. III. 3. 

of a bod} T which legislates for the nation. He is to con- 
sult the interests of the whole people, and not merely 
those of a section. 

Clause 3. — ^Vo person shall be a Senator who shall not 
have attained to the age of thirty years, and been nine years 
a citizen of the United, States, and who shall not, when 
elected, be an inhabitant of that State for which he shah 
be chosen. 

A Representative must be twenty-five years of age ; a 
Senator, thirty : a Representative must have been a citi- 
zen seven years; a Senator, nine. The condition as to 
residence is the same for both. 

The age required in a Roman Senator was thirty years. 
In Rome, majority was not attained till the age of 
twenty-five : the same is true in France and Holland. 1 

Two cases have occurred of elections to the Senate 
without the requisite number of years of citizenship. 
Albert Gallatin was elected from Pennsylvania in 1793; 
his seat was vacated by resolution of the Senate. James 
Shields was elected from Illinois in January, 1849; his 
seat was vacated also, but he was re-elected in October 
of the same year, his disability having been by that 
time removed. 

There is nothing to prevent a Senator's changing 
his residence to another State after his election. He 
is not the representative of a particular State. 

Clause -4. — The Vice-President of the United States 
shall be President of the Senate, but shall have no vote^ 
unless they be equally divided. 

The Convention that formed the Constitution did not 
at first contemplate such an officer as Vice-President. 
The Senators were to elect their own presiding officer, 
who was to become President of the United States in 
case of the death, resignation, or removal of that officer. 

1 Story. 



1. III. 5. THE SENATE. 63 

But as the mode of electing a President, which was 
adopted by the Convention, required two persons to 
be voted for at the same time, the one receiving the 
highest number of votes to be President, this provision 
for a Vice-President was made near the close of the 
session. The Lieutenant-Governor of a State is usually 
the presiding officer of the State Senate. 

The casting vote of the Vice-President can be of effi- 
cacy only when in favor of a measure. If he had no 
vote, no measure could be carried upon which the 
Senate were equally divided. As it is, he has helped 
to carry some measures of great importance. By a rule 
of the Senate, adopted in 1828, " every question of order 
shall be decided by the president without debate, sub- 
ject to appeal to the Senate." 

In the British House of Lords, the Lord Chancellor, 
or some other person appointed by the Crown, presides. 
If no person is appointed, the Lords elect. 

Clause 5. — The Senate shall choose their other officers, 
and also a President pro tempore, in the absence of the 
Vice -President , or ichen he shall exercise the office of 
President of the United States. 

The officers of the Senate are a Secretary, Chief 
Clerk, Executive Clerk, Sergeant-at-Arms, Door-keeper, 
and Chaplain. 

The President pro tempore seems not to be appointed 
permanently, except on the death of the Vice-President, 
or on his becoming President. Thus on the twenty- 
third of March, 1869, Mr. Anthony of Rhode Island 
was chosen President pro tempore, Vice-President Colfax 
having given notice that he should be absent for a few 
days. On the twent}^-ninth of March the Vice-Presi- 
dent resumed the chair. On the ninth of April Mr. 
Anthony was elected again, the Vice-President being 
absent. It is customary thus to continue to elect the 



64 THE CONSTITUTION. 1. III. 6. 

same gentleman. Mr. Ferry was President pro tempore 
when Vice-President Wilson died in 1875. 

When the Vice-President becomes President of the 
United States, the President pro tempore receives the 
salary of the Vice-President. The President pro tempore 
is not restricted to a casting vote; he has his vote as 
Senator. 

Clause 6. — The Senate shall have the sole power to try 
all impeachments. When sitting for that purpose, they 
shall be on oath or affirmatio7i. When the President of the 
United States is tried, the Chief Justice shall preside; 
and no person shall be convicted without the concurrence 
of two-thirds of the members present. 

The Senate, whose principal functions are legislative, 
is here clothed with judicial powers. All those who 
are impeached by the House of Representatives must 
be tried by the Senate. 

In Great Britain, the power of impeachment is with 
the Commons, and the power of trial with the Lords; 
but the Lords do not take a special oath, and a ma- 
jority is sufficient to convict. Our method is thus more 
favorable to the party under trial than the British. 

When the President is tried, the Chief Justice presides, 
oecause the Vice-President is interested in the result of 
the trial. If the President is convicted, the Vice-Presi- 
dent succeeds to the office. When Andrew Johnson was 
tried in 1868, Chief Justice Chase presided. If Mr. John- 
son had been convicted, the President pro tempore would, 
by the law of March 1st, 1792, have succeeded to the Presi- 
dency; on that account it was claimed that he ought not 
to participate in the trial. His own view of his right 
and his duty differed from this, however, and he voted 
on the case as other Senators. 

As the Constitution provides (Art. II, Sec. 1, Clause 6) 
that, in case of the inabilit} T of the President to dis- 
charge the duties of his office, Congress may declare 



1. III. 7. IMPEACHMENT. 65 

what officer shall act as President till the disability be 
removed, it has been claimed that Congress might 
make a trial under impeachment such a disability, and 
provide that during the trial the President should not 
exercise the office. No such law has been enacted, and 
President Johnson continued to discharge his official 
duties from the twenty-fourth of February, when the 
House of Representatives voted to impeach him, to the 
twenty-sixth of May, when the final vote was taken. 

There have been seven cases of impeachment: Wil- 
liam Blount, Senator from Tennessee, in 1798; John 
Pickering, District Judge of New Hampshire, in 1803; 
Samuel Chase, Associate Justice of the Supreme Court, 
in 1804; James H. Peck, District Judge of Missouri, in 
1830; West H. Humphries, District Judge of Tennes- 
see, in 1862; Andrew Johnson, President, in 1868; and 
W. W. Belknap, Secretary of War, in 1876. Judges 
Pickering and Humphries only w T ere convicted. 

Clause 7. — Judgment in cases of impeachment shall not 
extend further than to removal from office, and disqualifica- 
tion to hold and enjoy any office of honor, trust, or profit, 
under the United States; but the party convicted shall 
nevertheless be liable and subject to indictment, trial, judg- 
ment, and punishment, according to law. 

In England, there is no such limitation in the pun- 
ishment. The person convicted may be fined, or im- 
prisoned, or banished, or put to death. But in our 
country, the punishment is political — removal from 
office and disqualification for it. This judgment, how- 
ever, does not prevent a subsequent trial by jury for 
the criminal violation of law. 

In a subsequent Article it is provided that a civil 
officer of the United States, impeached and convicted, 
"shall be removed from office." This punishment is 
imperative; he may be punished further by disqualifi- 
cation to hold office. The punishment inflicted on such 

0. (I. 0. 



QO THZ : >N8TITUTK LIT. 1. 

an officer, who has been convicted by the Senate, can 
not be less than removal from office : it can not be 
greater than removal and disqualification combined. 
Judge Pickering was removed from office only; Judge 
Humphries was removed from office and declared dis- 
qualified to hold any office of honor, trust, or profit 
under the United States 

Sec i. Clause 1. — The timet . and t>iann>: 

holding elections for Senators and Representatives shall be 
ibed in Stctte by the legislature thereof; but 

<ay, at any time, by laic, make or alter 
regulations f except as to the pl< loosing Senators. 

By Act of Congress, passed June 2-5th. 1842 it was pro 
vided that Representatives should be elected by districts 
of contiguous territory equal to the number of Repre- 
sentatives. This is believed to have been the first in- 
stance of any regulations by Congress touching elections 
of Senators or Representatives. In 1366 (July 2oth), 
an act was passed to regulate the mode of choosing S - 
as already stated. In 1871 (February 28th . 
ingress enacted that all votes for Representatives in 
ogrese should be by written or printed ballots, any 
law of any State to the contrary notwithstanding. In 
1872 February 2d), provision was made that Represent- 
js should be elected on the same day throughout 
the Unite 51 i s, : . on the Tuesday after the first 
Monday in Xovember: to go into effect in 1876. By 
act of 1872 states - -ritutions prescribed a dif- 

ferent day were exempted from it- 

This clai ving to C sjress the ultimate control 

as to election : Senal ra and Representatives, met 
with little opposition in the Convention, but it was 
opposed in some of the State Conventions called to 
ratify the Constitution. '"Its propriety Mr. Ham- 

ilton, ste ;pon the evidence of this plain proposition, 
that every government ought to contain in itself the 



1. IV. 2. CONGRESSIONAL ELECTIONS. 67 

means of its own. preservation." 1 But the opponents 
of the Constitution maintained that this clause gave to 
Congress the whole ultimate control of elections for 
members of Congress, including the qualifications of 
electors and elected, except as stated elsewhere in the 
Constitution. Patrick Henry said : " The control given 
to Congress over the time, place, and manner of holding 
elections will destroy the end of suffrage. *• * * 
Congress may tell you they have a right to make the 
vote of one gentleman go as far as the votes of a hun- 
dred poor men. * * * They may regulate the num- 
ber of votes by the quantity of property, without in- 
volving any repugnancy to the Constitution." ' 2 

The practice has been for the States to prescribe the 
qualifications of voters in their constitutions. Mr. 
Farrar claims, on the other hand, that it was well 
understood by both parties at the time the Constitution 
was framed, " that the whole law of elections, subject 
to the provisions of the Constitution, was under the 
control of Congress." 3 

The Constitution of the Confederate States says, "No 
person of foreign birth, not a citizen of the Confederate 
States, shall be allowed to vote for any officer, State or 
Federal." Thus their federal Constitution prescribed 
qualifications for voters at State elections. 

The restricting clause, as to the place of choosing 
Senators, was inserted that Congress should not have 
the right to prescribe to the State legislatures their 
places of meeting. 

Clause 2.— The Congress shall assemble at least once in 
every year, and such meeting shall be on the first Monday 
in December, unless they shall by law appoint a different 
day. 

Annual sessions are thus made imperative. As the 

1 Federalist, No. 59. 2 Elliot's Debates, III, pp. 60, 175. 

3 Manual of the Constitution, p. 268. 



68 THE CONSTITUTION. 1. IV. 2. 

term of each Congress is two years, there would be two 
regular sessions during each term. In eighty-eight 
years from March 4th. 1789, or to the end of the Forty- 
fourth Congress, there have been eleven instances of 
three sessions by the same Congress. 1 For the first 
thirty-two years, the regular sessions began on the first 
.Monday in December about half the time: since that, 
all the regular sessions have begun on that day. 

The first regular session of each Congress usually 
continues from December till the following spring or 
summer. The Thirty-first Congress was in session till 
the thirtieth of September — three hundred and two 
days. The second regular session closes at noon on the 
fourth of March, being thus about three months long. 
But though the constitutional term of Congress ends 
at noon on the fourth of March (it formerly ended at 
midnight of the third), the Journals of the Senate and 
House of Representatives bear the date of the third of 
March, and the laws signed by the President after mid- 
night are dated on the third and not on the fourth. 

By act of January 22d, 1867, each new Congress was 
required to meet "at twelve o'clock, meridian, on the 
fourth day of March, the day on which the term begins 
for which the Congress is elected.*' Under this act 
each Congress had three sessions : the first commencing 
on the fourth of March, the second on the first Monday 
of December of that year, and the third on the first 
Monday of December of the following year. The first 
session was very short, and the second and third were 
regarded as the regular sessions. This act has now 
been repealed. It was in force during the Fortieth, 
Forty-first, and Forty-second Congresses. 

Under the Articles of Confederation, Congress might 



1 There were three sessions in the First Congress, the Fifth, Eleventh, 
Thirteenth, Twenty-fifth, Twenty-seventh. Thirty-fourth, Thirty -sev- 
enth, Fortieth, Forty-first, and Forty-second. 



I.V. 1. CONGRESSIONAL ELECTIONS. t 69 

adjourn to any time within the year, but no period of 
adjournment could be for a longer time than six 
months. Congress was thus a permanent body, and 
not subject to periodic dissolution as now. 

Sec. 5, Clause 1. — Each House shall be the judge of 
the elections, returns, and qualifications of its own mem- 
bers, and a majority of each shall constitute a quorum to 
do business ; but a smaller number may adjourn from day 
to day, and may be authorized to compel the attendance of 
absent members, in such manner and under such penalties 
as each House may provide. 

The certificate of election furnished by the State au- 
thorities is prima facie evidence that the person holding 
it is entitled to a seat, but it is not conclusive. Each 
House has a Committee on Elections, to whom are re- 
ferred all doubtful cases, and on their report the House 
decides : from this decision there is no appeal. The 
recent war has multiplied the number of such cases, 
and, in repeated instances, persons holding certificates 
of election have not been deemed entitled to member- 
ship. The British Parliament and most legislative 
bodies exercise the same power as to the admission of 
members. 

A majority seems to bo a suitable quorum. In the 
British House of Commons, composed of over six 
hundred members, forty-five is a quorum. Under the 
Articles of Confederation, no question, except that of 
adjournment, could be decided unless by a majority of 
all the States, and for the most important questions 
nine States were required, i. e., two-thirds. There was 
no power to compel attendance, and business was fre- 
quently delayed through the absence of members. In 
one instance, Congress assembled on the third of No- 
vember, but there was no quorum till the fourteenth 
of January. Rhode Island once recalled her delegates, 
and so prevented the transaction of important business. 



70 the M^rmmoN. 1. v .. 

In the State of Ohio, no bill can be passed without 
the votes of a majority of all the members elected : 
each House. The new constitution of Hlin:.~ fa 
similar provision. 

By a rule of the House of Representatives, fifteen 
members, including the Speaker, can compel attend- 

Clanse '2, — El House may determine the rules of its 
proceedings, punish its members for disorderly behavior, 
and , with the concum bar. 

The "rules of proceedings" eon-::: ate what ifi ailed 
Parliamentary Law. When the first Congress convened, 
in 1789, the House of Representatives established rules, 
some of which are still in force. At the beginni ng 
the first session of each Cong] ?ss it is us*il to adopt 
the rules of the previous Congress until otherwise 
ordered, and a committee is appointed to report new 
rules during the session. The rules of the House : 
Representatives may be found in the Appendix of their 
Journal. 

The power to punish a member has been exercised by 
both Hous-s. William Blount T Senator from Tenn-- : 
was expelled in 1797, and Jesse D. Bright, Senator from 
Indiana, in 1863. 

It seems to be settled that a member may be ex- 
pelled for any misdemeanor which, though not punish- 
able by any statute, is inconsistent with the trust and 
duty of a member. 

The Constitution does not confer any express power 
to punish content pi flenses by persons not mem- 

bers of the House, but this power has been considered 
to belong to legislative assemblies ae -uch, and the 
Supreme Court has so decided. But the power to pun- 
ish is held to extend only to imprisonment, and this 



1 Journal H. B. Thirty-ninth Congress, p. 1201. 



1. V. 3. VOTING BY YEAS AND NAYS. 71 

only until the dissolution of the House by which the 
punishment is inflicted. 

Clause 3. — Each House shall keep a, journal of its 
proceedings, and from time to time publish the same, ex- 
cepting such parts as may in their judgment require 
secrecy; and the yeas and nays of the members of either 
House, on any question, shall, at the desire of one-fifth 
of tliose present, be entered on the journal. 

It is usual for both Houses to have open sessions, 
except the Senate when in Executive session, i. e., 
acting upon nominations made by the President, or 
engaged in discussion of treaties. The Convention 
that framed the Constitution sat with closed doors, and 
so did the Senate from the beginning of the First Con- 
gress until the second session of the Third Congress. 

There are three methods of voting in Congress. The 
usual method is viva voce; the presiding officer deciding 
by his ear. If he is doubtful as to the result, he makes 
a count; or, if a member questions the correctness of 
his decision, a division of the House is called for, and 
tellers are appointed who count the voters. But in 
important questions the roll of the House is called by 
the Clerk, and each member's vote is recorded in the 
journal. This is voting by " Yeas and Nays." It 
enables the people to know how their representatives 
vote. 

The Articles of Confederation required the yeas and 
nays to be taken when called for by a single member. 
The present provision, making the yeas and nays de- 
pendent on the call of one-fifth the members present, 
is a decided improvement on the former one. A fac- 
tious minority often avail themselves of this rule to 
delay proceedings, and prevent the passage of a bill. 
Thus a member moves for adjournment, for example, 
and asks for the yeas and nays. If a fifth of those 



72 THE CONSTITUTION. 1. VI. 1. 

present concur in this request, the roll must be called, 
occupying much time. Oftentimes the member mov- 
ing to adjourn votes against his own motion. 

Clause 4. — Neither House, during the session of Con- 
gress, shall, without the consent of the other, adjourn for 
more than three days, nor to any other place than that 
in which the two Houses shall be sitting. 

Under the Articles of Confederation, Congress could 
adjourn to any time within the year, and to any place 
within the United States, but no adjournment could 
be for a longer period than six months. The present 
provision prevents either House from interrupting, by 
adjournment, the progress of business. 

Sec. 6, Clause 1. — The Senators and, Representatives 
shall receive a compensation for their services, to be as- 
certained by law, and paid out of the Treasury of the 
United States. They shall in cdl cases, except treason, 
felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective 
Houses, and in going to and returning from the same; 
and for any speech or debate in either House, they shall 
not be questioned, in any other place. 

Under the Articles of Confederation, each State paid 
its own members of Congress. By providing for their 
])ayment from the national treasury, the Constitution 
makes them independent of the States. In the Con- 
vention Mr. Madison said, "he could not see any chance 
of that stability in the general government the want 
of which was a principal evil in the State govern- 
ments," if the members were left dependent on the 
States for their compensation. 

In the British Parliament the members receive no 
compensation. And in our Convention, Gen. Pinckney 
suggested, as the Senatorial branch was to represent 
the wealth of the country, that no salary be allowed. 



1. 1, 



CONGRESSIONAL COMPENSATION. 73 



This was seconded by Dr. Franklin, but disagreed to; 

the vote standing six to five. 

The compensation is to be ascertained by law; that 
is, Congress itself is authorized by the Constitution to 
determine it. The First Congress passed an act fixing 
the allowance at six dollars a day while in attendance, 
and six dollars for each twenty miles of travel in go- 
ing and returning. The Speaker of the House, besides 
his pay as Representative, was to have six dollars a 
day additional. 

This rate continued till 1815, except that for one 
year, 1795, the Senators received seven dollars a day, 
and the same for each twenty miles of travel. By act 
of March 19th, 1816, the compensation was fixed at 
fifteen hundred dollars a year for each Senator and 
Representative: the Speaker to receive three thousand 
dollars, and the President pro tempore of the Senate, the 
same when there should be no Vice-President. This 
was repealed in February, 1817, having been operative 
only during the Fourteenth Congress. 

In 1818 — January 22d — the per-diem system was re- 
stored, to be operative from March 4th, 1817, the rate 
being established at eight dollars a day, and eight dol- 
lars for each twenty miles of travel: the Speaker, and 
the President pro tempore of the Senate, in the absence 
of the Vice-President, receiving eight dollars a day ad- 
ditional. 

This rate continued till the Thirty-fourth Congress, 
which passed an act --August 16th, 1856 — establishing 
the compensation at three thousand dollars a year, and 
eight dollars for each twenty miles going and return- 
ing, for two sessions only: the Speaker receiving six 
thousand dollars; and the President pro tempore of the 
Senate, in the absence of the Vice-President, the salary 
of that officer, which had been raised to eight thou- 
sand dollars. 

In 1866 — July 28th — it was raised to five thousand 

" C. G. 7. 



74 THE CONSTITUTION. 1. VI. 1. 

dollars a year, and mileage at the rate of " twenty cents 
a mile, to be estimated by the nearest route usually 
traveled in going to and returning from each regular 
session/' The pay of the Speaker was fixed at eight 
thousand dollars per annum, this being ihe salary of 
the Vice-President. 

In 1873, March 3d, another change was made. The 
compensation was raised from five thousand to seven 
thousand five hundred dollars, with actual traveling ex- 
penses. The Speaker of the House and the President pro 
tempore of the Senate were to receive ten thousand dol- 
lars. In 1874, January 24th, the act was repealed so far 
as concerned these salaries, thus making them, as before, 
five thousand and eight thousand dollars respectively. 

The change made in 1816, from six dollars a day to 
fifteen hundred dollars a year, was received by the peo- 
ple with great disfavor, and many members were not 
returned to the next Congress in consequence. The 
more recent change, in 1873, also called forth very se- 
vere criticism. The members were blamed for the 
large increase of salary, and still more for making it 
retroactive. A number of members refused to receive 
the increase for the time already expired. The re- 
troactive feature is, however, not peculiar to the act 
of 1873. The law of 1816 — March 16th — was opera- 
tive from March 4th, 1815. That of August 16th, 1856, 
increased the compensation from March 4th, 1855. So 
that of July 28th, 1866, took effect from March 4th, 
1865. Every act of Congress, therefore, to increase the 
pay of Senators and Representatives, has been retro- 
active in its operation, covering a period varying from 
twelve months to twenty-four. ' 

All the acts prior to that of 1866 were separate and 
independent acts; but the one of 1866, and that of 1873, 
were sections in appropriation bills. They were both 
passed on the last days of the respective sessions. 

From 1789 to the present time, then, the compensa- 



1. vi. 2. FREEDOM FROM ARREST. 75 

tion has been as follows: 1789 to 1815, 86.00 a day ; 
1815 to 1817, $1500 a year; 1817 to 1855, $8.00 a day; 
1855 to 1865, $3000 a year; 1865 to 1871, $5000 a year; 
1871 to 1874, $7500 a year; 1874 and since, $5000 a year. 

By act of March 29th, 1867, each Senator, Represent- 
ative, and Delegate, after having taken the required 
oath, is entitled to receive his compensation at the 
end of each month. 

The privilege of freedom from arrest has belonged to 
legislative bodies in Europe for many years. The ex- 
ceptional cases are what are called indictable offenses. 
Whoever should cause the arrest of a member would 
be liable for trespass, and might also be punished for 
contempt of the House. The privilege commences from 
the time of the election, and before the member takes 
his seat or is sworn. 

Freedom of debate is secured by this clause. But 
the privilege is confined to words spoken in the course 
of parliamentary proceedings, and does not cover things 
done beyond the place and limits of duty; while a 
member can not be questioned for a speech delivered 
in the House, he might be liable if he should cause 
the speech to be published. 

The privilege from arrest secures the member, of 
course, against all process, the disobedience to which is 
punishable b}^ attachment of the person, as a subpoena, 
or a summons to serve on a jury. (Story, Vol. II, p. 
608.) 

Clause 2. — No Senator or Representative shall, during 
the time for which he teas elected, be appointed to any civil 
office under the authority of the United States which shall 
have been created, or the emoluments whereof shall have 
been increased, during such time; and no person holding 
any office under the United States shall be a member of 
either House during his continuance in office. 

The first part of this clause was intended to prevent 



76 THE CONSTITUTION. 1. VII. 1. 

corruption and secure the integrity of the members. It 
would tend to diminish the temptation to create lucra- 
tive offices which they themselves might hope to fill. 
But the security is only partial, as an office created 
during the term of a member might be held by him 
many years after his membership had expired. 

The acceptance of an office under the United States, 
by one who has been elected a member of Congress and 
has taken his seat, operates as a forfeiture of his seat. 
But if one holding an office under the United States is 
elected to Congress, he may hold the office until he is 
ready to take his seat, when he must resign. 

In Great Britain, the members of the Cabinet may 
also hold seats in Parliament, but our Constitution 
prohibits Cabinet officers from being members of Con- 
gress. The subject has been often discussed, but no 
serious attempt has been made to amend the Consti- 
tution in this respect. By the present arrangement, 
the Legislative and Executive departments of the gov- 
ernment are more widely separated, and any undue in- 
fluence of the Executive is better guarded, against. 

Sec. 7, Clause 1. — All bills for raising revenue shall 
originate in the House of Representatives ; but the Senate 
may propose or concur with amendments, as on other bills. 

This is the practice in the British Parliament. All 
bills for raising revenue must originate in the House 
of Commons. The subject was discussed at great length 
in the Convention, and was not finally decided till near 
the day of adjournment. It was so connected with 
other provisions of the Constitution as to render it 
difficult to ascertain by what principles it was settled. 
As first acted upon by the Convention, the clause was 
much more comprehensive than in its present form : 
" That all bills for raising or appropriating money, and 
for fixing the salaries of the officers of the govern- 
ment of the United States, shall originate in the first 



1. VII. 2. BILLS FOR RAISING REVENUE. 77 

branch of the legislature, and shall not be altered or 
amended by the second branch/' 

Our circumstances differ so widely from those of Great 
Britain that there seems to be no sufficient reason why 
the Senate may not originate bills for raising revenue 
as well as amend them; why they may not provide for 
raising revenue as well as make appropriations. During 
the third session of the Forty-first Congress, the Senate 
passed a bill to repeal the law imposing the income tax. 
But the House of Representatives, instead of acting 
upon it in the usual way, passed a resolution calling 
the attention of the Senate to this clause of the Con- 
stitution. 

Bills looking to the raising of money have originated 
in the Senate and have passed into laws : as the bill to 
establish the post-office, that to establish the mint, and 
bills to regulate the sale of the public lands. Raising 
revenue is understood thus to be confined to levying taxes. 

Clause 2. — Every bill which shall have passed the House 
of Representatives and the Senate, shall, before it become 
a law, be presented to the President of the United States ; 
if he approve he shall sign it, but if not he shall return it 
with his objections to that House in which it shall have 
originated, who shall enter the objections at large in their 
journal, and proceed to reconsider it. If, after such re- 
consideration, two-thirds of that House shall agree to pass 
the bill, it shall be sent, together with the objections, to the 
other House, by which it shall likewise be reconsidered, 
and if approved by two-thirds of that House, it shall be- 
come a law. But in all such cases the votes of both 
Houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill shall 
be entered on the journal of each House respectively. If 
any bill shall not be returned by the President within ten 
days (Sundays excepted) after it shall have been presented 



78 THZ "TTTTipX. 1. VII. 2. 

to him, the same shall be a law. in like manner as if he had 
signed it, unless the Congress, by their adjournment, pre- 
vent its return, in which case it shall not be a law. 

This clause gives the President some participation in 
legislation. The Executive and Legislative depart- 
ments are not entirely disjoined. But the President's 
participation is negative. This returning of a bill with 
objections is called vetoing the bill, though the word 
veto does not occur in the Constitution. In Great Brit- 
ain the sovereign pos- — ss a absolute veto, but it is 
said not to have been exercised since 1692, in the reign 
illiam III. with, perhaps, a single exception. 

In the Convention various plans were discussed for 
revising the bills passed by Congress. One was to give 
the right of revising all bills to the Executive and the 
Judiciary. This was Mr. Randolph's plan, and was ap- 
proved by Mr. Madison. .Some members wished the 
President to have an absolute veto. At one time the 
Convention voted in favor of requiring a vote of three- 
fourths of each House in order to pass a bill over the 
President's veto. 

The present method has commended itself to the 
people of the country. It is. doubtless, better than one 
admitting an unqualified veto, and better than one 
that should require a three-fourths vote in each House. 
The practice in the State governments is not uniform. 
In some the Governor has no veto, while in others a 
bill may be passed over a veto by a bare majority in 
each House. 

The veto power has been used by most of the Presi- 
dents. Washington vetoed two bills; Madison v- 
five and retained one ; Monroe vetoed one ; Jackson vetoed 
seven and retained two; Tyler vetoed five; Polk, three; 
Pierce, four; Buchanan, one; Johnson vetoed twerr 
and retained nineteen which became laws. No bill was 
passed over the veto of the President till the admin- 



1. VII. 3. THE PRESIDENT MAY VETO. 79 

istration of Mr. Tyler. One was so passed in his ad- 
ministration, four in that of Mr. Pierce, and seventeen 
in that of Andrew Johnson. 

It has been decided by the Senate — July 7th, 1856 — 
that two-thirds of a quorum only were requisite to pass 
a bill over the President's veto, and not two-thirds of 
the whole Senate. 

There are three methods by which a bill may become 
a law. (a.) If it is passed by a majority of each House 
and is signed by the President, (b.) Without the sig- 
nature of the President, if it receives the votes of two- 
thirds of the members present of each House, after 
having been returned by the President with his objec- 
tions, (c.) If, having been passed by each House and 
sent to the President, it is retained by him ten days 
(Sundays excepted), it becomes a law, unless Congress 
has adjourned in the mean time. 

Clause 3. — Every order, resolution, or vote, to which the 
concurrence of the Senate and House of Representatives 
may be necessary (except on a question of adjournment) 
shall be presented to the President of the United States, 
and before the same shall take effect shall be approved by 
him, or, being disapproved by him, shall be repassed by 
two-thirds of the Senate and House of Representatives, 
according to the rules and limitations prescribed in the 
case of a bill. 

This clause prevents the passage of laws under the 
name of resolutions, etc., without the approval of the 
President. The process is the same, no matter what 
may be the term employed, whether order, resolution, 
vote, or bill. Whatever does not relate to the internal 
government of the individual House, as elections, votes 
of censure or thanks, etc., requires the signature of the 
President, or a two-thirds majority in each House. A 
joint resolution, approved by the President, er duly 
passed without his approval, has all the effect of law. 



SO THE CONSTITUTION. 1. VTII. 

A resolution of Congress proposing an amendment 
to the Constitution does not require the signature of 
the President; though in one or two cases such reso- 
lutions have been sent to him through inadvertence. 
In February, 1865, Congress passed a joint resolution 
that the electoral votes for President and Vice-Presi- 
dent, given in certain States then in rebellion against 
the government, should not be received or counted. 
The President approved the resolution, but said in a 
message that his approval was not necessary. (The 
electoral votes were counted on the eighth, though the 
official approval of the President was not received till 
the tenth.) In March, 1866, the two Houses determined 
that neither House should consider the credentials of 
any man presented as a member from a State lately 
declared to be in rebellion, until Congress shall have 
decided that such State is entitled to representation 
therein. This resolution was not sent to the President. 

Sec. 8. — The Congress shall have power 

In Article I, Section 1, it is declared that all legis- 
lative powers granted in the Constitution shall be 
vested in a Congress of the United States. In Section 
8 it is declared more specifically that Congress shall 
have power, i. e., rightful authority, to legislate on 
various subjects. But it is not intended that this shall 
be considered an exhaustive enumeration of the powers 
of Congress, or that Congress shall not legislate except 
on the matters here mentioned; for the eighteenth 
clause gives Congress power " To make all laws which 
shall be necessary and proper for carrying into execu- 
tion the foregoing powers, and • all other powers vested 
by this Constitution in the government of the United 
States, or in any department or officer thereof." The 
Constitution itself in other sections requires of Con- 
gress the exercise of powers not specifically mentioned 
in this section; and it implies in various places that 



l.YIII.l, TAXES, DUTIES, IMPORTS, AND EXCISES. 81 

Congress must do what it is nowhere in the Consti- 
tution expressly authorized to do. Some of these cases 
will be cited, and the subject will be still further dis- 
cussed, in connection with the consideration of the 
eighteenth clause. 

Clause 1. — To lay and collect taxes, duties, imposts, 
and excises, to pay the debts and provide for the common 
defense and general welfare of the United States; but all 
duties, imposts, and excises shall be uniform throughoid 
the United States. 

Every civil government must have a revenue for 
its own support, and the subject of raising funds is 
appropriately placed in this first clause. Under the 
Articles of Confederation the common treasury was 
supplied by the several States, in proportion to the 
value of the land with the buildings and improve- 
ments. Taxes were not laid and collected by the gen- 
eral government, but were levied by the authority and 
direction of the legislatures of the several States. The 
subject was discussed in the Convention with great 
earnestness, and the result was to give to Congress the 
control of the whole subject of taxation and revenue 
so far as relates to the administration of the general 
government. 

The obvious construction of the language of the 
clause makes it confer upon Congress the power to 
raise a revenue for the purpose of paying the debts 
and providing for the common defense and general 
welfare. This involves the power to pay the debts and 
provide for the general welfare. 

The four terms used, taxes, duties, imposts, and excises, 
were originally of nearly the same signification. They 
imply pecuniary burdens imposed by a civil govern- 
ment upon its subjects. This clause distinguishes be- 
tween taxes and the others, inasmuch as it states that 



82 THE CONSTITUTION. 1. VIII. 1. 

"all duties, imposts, and excises shall be uniform through- 
out the United States." In Artiele I, Section 2, Clause 
3, Representatives and direct taxes are required to be 
apportioned among the several States in proportion to 
their population. 

In Political Economy, that is a direct tax which 
comes from the property of the nominal payer, while 
an indirect tax is assessed on one person but is really 
paid by another. Duties on goods imported are indi- 
rect, as the consumer pays them. Poll taxes and those 
imposed directly on property are direct. The provision 
of the Constitution as to direct taxes prevents our strict 
observance of this distinction; and the courts have de- 
cided that taxes on carriages, for example, are not di- 
rect taxes, though Political Economy would so regard 
them. So also of taxes on incomes. 

The taxes levied by the State governments, by coun- 
ties, and by cities and towns, are for the most part 
direct taxes. The constitution of the State of Ohio 
prohibits poll taxes, and requires that all property shall 
be taxed equally. The revenues of the general govern- 
ment are almost wholly from indirect taxation. Con- 
gress has never levied a general tax on all the prop- 
erty of the country. Until the war of the rebellion the 
general government derived nearly all its revenues from 
duties on goods imported into the country. Before that 
time a direct tax had been laid but four times since 
the adoption of the Constitution, viz., in 1798, 1813, 
1815, 1816. In these cases the tax was upon lands, 
houses, and slaves. The amount of tax to be paid by 
each State, was named in the act, and was in propor- 
tion to the population, and not. according to the prop- 
erty of the State. In one or two of the cases the 
amount of tax assessed upon each county of the several 
States was given. In the act of 1798, the tax on each 
slave was fifty cents. In the others all the property 
taxed — dwellins-houses. lands, and slaves — was to be 



1. VIII. 1. DIRECT TAXES. 83 

assessed at its true value. In each case the tax was 
in force but a single year. 

In August, 1861, after an interval of forty-five years, 
another direct tax was levied. This was in consequence 
of the war of the rebellion. The act required that 
twenty millions of dollars a year be levied on all lots 
of ground with their improvements and dwelling- 
houses. The amount was apportioned among the States 
and Territories and the District of Columbia, according 
to their population, as required by the Constitution. 1 
The law provided that any State or Territory might 
collect its quota, and be allowed fifteen per cent, of the 
amount for the expense of collection. All the loyal 
States and Territories, except Delaware and Colorado, 
assumed the payment of the tax. 2 This law, like the 
others of an earlier period, was in force but one year. 
By act of July 1st, 1862, its operation was suspended, 
save as to the collection of the first annual tax, until 
April 1st, 1865. 3 By act of June 30th, 1864, it was again 
suspended till Congress should take further action. 4 

The second act passed by Congress after the adoption 
of the Constitution was, "for laying a duty on goods, 
wares, and merchandises imported into the United 
States." All civilized nations adopt this as one of the 
methods of raising revenue. Whatever may be their 
theoretical notions as to free trade, none hesitate to lay 
duties on a portion of the merchandise which they im- 
port. There is great diversity of opinion as to the 
articles upon which duties shall be levied; whether it 
is or is not expedient to impose duties upon those which 
would come into competition with the products of the 
country itself. It is worthy of notice that the act 
alluded to above, which was passed July 4th, 1789, had 



1 The Territories had not been named in any previous act imposing 
direct taxes; nor the District of Columbia, prior to 1815. 

2 Report of Commissioner of Internal Revenue for 1870, p. 14. 

3 Statutes at Large, XII, 489. 4 Ibid, XITI, 304. 



84 THE CONSTITUTION. 1. VIII. ft. 

a preamble, as follows: "Whereas it is necessary for 
the support of government, for the discharge of the 
debts of the United States, and the encouragement and 
protection of manufactures, that duties be laid on 
goods, wares, and merchandises imported: Be it en- 
acted," etc. 

We have seen that until 1861 direct taxes had been 
levied for only four years since the adoption of the 
Constitution ; but duties on goods imported have been 
collected from the first, and have formed until recently 
the chief source of revenue. The term excises, though 
used in the Constitution, does not appear in the laws 
enacted by Congress. As commonly used, it signifies 
all indirect taxes except duties on imports and exports. 
In a narrower meaning, it is a tax upon the production of 
commodities. Thus, distillers pay a tax of so much a 
gallon on the whisky they manufacture, and oil refiners 
have paid a similar tax. 

The first case of indirect taxation, other than duties 
on imports, was that of a duty on spirits distilled within 
the United States, by an act of Congress, March 3d, 1791. 
The duty ranged from nine cents a gallon to twenty- 
five, according to its percentage below or above proof. 
On the stills employed, there was also a yearly duty of 
sixty cents for every gallon of their capacity. In 1794. 
duties were levied upon carriages, and retail dealers in 
wines, etc., were required to pay five dollars a year for 
license. A duty of eight cents a pound was also levied 
upon snuff manufactured in the United States, and one 
of two cents a pound on sugar refined. About the same 
time duties were laid on auction sales ; and in 1797 
stamp duties were imposed on certain certificates, letters 
patent, insurance policies, bills of exchange, promis* 
notes, etc.. etc. Thus a system of internal revenue was 
brought into full operation during the last century, 
having been commenced very soon after the adoption 
of the Constitution. 



1. VIII. 1. . INTERNAL TAXES. 85 

In April, 1802, an "Act to repeal the Internal Taxes," 
swept away "the internal duties on stills and do- 
mestic distilled spirits, licenses to retailers, sales at 
auction, carriages for the conveyance of persons, and 
stamped vellum, parchment, and paper." But in 1813, 
these were restored, and the office of Commissioner of 
the Revenue was established, "for superintending the 
collection of the direct tax and internal duties." In 
1815, the list of manufactured articles on which in- 
ternal duties were levied was largely increased, and 
taxes imposed also upon household furniture and gold 
and silver watches. 

All these taxes — they are called duties in the statutes 
of the United States — were required to be uniform by 
the Constitution. Thus, if upon a promissory note for 
a given sum a certain duty was levied in one State, the 
same duty must be paid upon a note of the same amount 
in every other State. If the owner of one gold watch 
was required to pay a tax of one dollar, every one own- 
ing a gold watch must pay a like sum. But direct taxes 
must be in proportion to the population of the State. 
If two States are equal in population, their citizens 
must pay to the general government the same aggre- 
gate amount of direct taxes, though the citizens of one 
State may possess twice as much property as those of 
the other. 

The act of Congress of August 5th, 1861, which levied 
a direct tax on the States and Territories, provided, 
also, for an income tax, believed to be the first ever 
levied by our general government. The tax was three 
per cent per annum on the excess of income over eight 
hundred dollars. In July, 1862, it was changed to 
three per cent on the excess of income over six hun- 
dred dollars ; but five per cent on the excess over ten 
thousand. For the years 1870 and 1871, it was two and 
a half per cent on the excess of income over two thou- 
sand dollars. No income tax has been levied since that 



86 THE CONSTITUTION. 1. VIII. 2. 

for 1871. The amount collected on this tax in 1865, 
was $20,000,000; in 1866, $61,000,000; in 1867, $57,000,000; 
in 1868, $32,000,000. 

On the first of July, 1862, an act to provide internal 
revenue was passed by Congress, which is by far the 
most elaborate and comprehensive scheme of internal 
taxation in the history of our government. It included 
duties on a great variety of manufactured articles, licenses 
for carrying on divers trades and occupations, duties on 
carriages, yachts, billiard tables, and plate; on banks, 
trust and insurance companies, railroads, steamboats, 
ferr} T -boats, railroad bonds, stamps, etc., etc. 

The income to the government from internal revenue 
from 1791 to 1849 was about $22,000,000; ranging from 
about $200 in 1843, to $5,124,708 in 1816. During the 
same period the income from customs was about 
$946,000,000. But in the year 1866 the income from in- 
ternal revenue was over $309,000,000, that from customs 
being about $179,000,000. For the year ending June 30, 
1877, the receipts from customs were about $131,000,000, 
and those from internal revenue $118,000,000. 

Clause 2. — To borrow money on the credit of the United 

States. 

In time of peace, the ordinary revenues of a nation 
should be sufficient to pay the expenses of its govern- 
ment; but in time of Avar these will be insufficient, 
and debts must be incurred. All nations possess this 
power of borrowing money, and all have exercised it. 
The usual mode of making loans is to issue the bonds 
of the government, which are its promises to pay the 
sums specified, at a given time, and with interest at 
given rates, usually payable semi-annually. These 
bonds are then sold at the best rates the government 
can command. 

The United States have issued bonds from time to 
time since the formation of the government; though 



1. VIII. 2. POWER TO BORROW MONEY. 87 

these were in possession of the capitalists almost ex- 
clusively, until the war of the rebellion made large 
loans necessary. Then efforts were made to circulate 
them among the people, and with such success that 
multitudes purchased United States bonds who had 
never before seen securities of this character. The 
issues were of various denominations, $50, $100, $500, 
$1,000, and so on. 

There have been three classes of loans which have 
been widely circulated among the people, viz., those 
known as seven-thirties, ten-forties, and five-hecnties. The 
first were called treasury notes, and both principal and 
interest were payable in currency. The interest w r as 
at the rate of seven and thirty-hundredths per cent 
per annum, which gave them their name, seven-thirties. 
This rate gives the interest one cent, a day on a note 
of $50, two cents on one of $100, etc., rendering it easy 
of computation. The five-twenties are payable, principal 
and interest, in coin, and the name, five-twenties, comes 
from the time of payment; the government may pay 
at any time after five years from their date, though they 
are not due till the expiration of twenty years. The 
interest is at the rate of six per cent per annum. The 
ten-forties may be paid, in like manner, after ten years, 
and are due at the end of forty years: interest five per 
cent per annum. 

The bonds of the United States can not be taxed by 
the State governments, according to a decision of the 
Supreme Court, even if the bonds themselves contain 
no stipulation to that effect. 

The public debt of the United States, on the first of 
January, 1791, was about $75,000,000. In 1816, it was 
over $127,000,000, which within about tw r enty years was 
entirely paid. In 1861, the debt was $90,000,000, and 
in 1866, it was $2,773,000,000. On the first of July, 
1877, it was $2,060,000,000. The advantages of this 
method of distributing the payment of a debt over a 



the cqxstitut: l vttt 3. 

period of years are obvious. The country is every vear 
becoming richer, and thus more able to pay off its in- 
debtedness. What would have been an insupportable 
burden at the creation of the debt, becomes, in the lapse 
of years, tolerable and easy. At the same time, the 
temptation to postpone unduly the payment of princi- 
pal should be steadily resisted. The ordinary expenses 
of the government will always call for heavv taxes, 
without adding to them interest on debts. 

The act of 1870, and subsequent acts, authorized the 
of bonds for $1,500,000,000 at five, four and a half, 
and four per cent interest, payable principal and inter- 
est in coin, and redeemable at the pleasure of the Gov- 
ernment after ten, fifteen, and thirty years respect- 
: to be sold at not less than par. and the pro- 
ceeds to be applied to redeem the five-twenties. Over 
$700,000,000 of six per cent bonds have already t Janu- 
ary. 1878) been thus redeemed, reducing the annual 
interest over §8.500.000. 

A portion of our present public debt is in the form 
of Treasury Notes, commonly called legal tenders, 
which are circulated as money, and on which the Gov- 
ernment pays no interest. The power to issue these 
comes from this clause fto borrow money) but it will 
be more convenient to consider them under another 
clai: - 

Clause 3. — To regulate commerce itith foreign nations, 
and among the several States, and with the Indian tribes. 

Prior to the adoption of the Constitution the power 
to regulate commerce was not in Congress, but in the 
several States. Each State made such regulations as 
its own interests seemed to require, without regard to 
the influence upon its neighbors. " The States through 
whose ports the natural or artificial channels of trade 
principally passed, were able to exact a revenue from 
those which were less favorablv situated for commercial 



I. VIII. 3. POWER TO REGULATE COMMERCE. 89 

purposes." It was on account of the difficulties and 
irritations growing out of these commercial regulations 
that a Convention of Commissioners from various States 
was held at Annapolis in September, 1786; which Con- 
vention recommended the one that framed the present 
Constitution in the year 1787. 

As appears from this third clause, the whole control 
of the subject of commerce, both with foreign nations, 
among the several States, and with the Indian tribes, 
is placed by the Constitution not with the States but 
with the general government. Under the Articles of 
Confederation each State levied duties on imports and 
exports as it pleased, and this, not only as regarded 
foreign countries, but with reference to commerce be- 
tween contiguous States. But noAv there can be no re- 
strictions on trade between two States, and all duties 
on goods imported from other countries must be "uni- 
form." The nation has the exclusive power over com- 
merce, and without this it would hardly deserve the 
name of a nation. 

" To regulate " commerce is to prescribe rules by 
which it is to be carried on. "With foreign nations" 
means with the people of those nations. The general 
government, and not the States, prescribes the rules 
of commercial intercourse between the people of the 
United States and those of foreign countries, and be- 
tween the people of any one State and those of all the 
other States. So also trade with the Indian tribes is 
under the exclusive control of Congress. 

"In the practice of the government, the commercial 
power has been applied to embargoes, non-intercourse, 
non-importation, coasting-trade, fisheries, navigation, 
seamen, privileges of American and foreign ships, quar- 
antine, pilotage, wrecks, light-houses, buoys, beacons; 
obstructions in bays, sounds, rivers, and creeks; inroads 
of the oceans, and many other kindred subjects; and, 
doubtless, includes salvage, policies of insurance, bills 
C. G. 8. 



90 THE CONSTITUTION. 1. VIII. 3. 

of exchange, and all maritime contracts, and the desig- 
nation of ports of entry and delivery. 

" Wherever the power of Congress extends, they are 
the exclusive judges of the proper reasons and motives 
for exercising it, and are not to be controlled by any alle- 
gation that it was done for a purpose not contemplated 
in the original grant. This commercial power has been 
employed for the purposes of prohibition, reciprocity, 
retaliation, and revenue — sometimes, also, to encourage 
domestic navigation and manufactures, by bounties, dis- 
criminating duties, and special privileges and prefer- 
ences, and to regulate intercourse, with a view to mere 
political objects; and the right to do so has been sus- 
tained by the unequivocal voice of the nation.*' 1 

In December, 1807, under the administration of Mr. 
Jefferson, an embargo act was passed. It provided 
"That an embargo be laid on all ships and vessels in 
the ports and places within the limits or jurisdiction of 
the United States, cleared or not cleared, bound to any 
foreign port or place; and that no clearance be fur- 
nished to any ship or vessel bound to such foreign port 
or place, except vessels under the immediate direction 
of the President of the United States/' 2 

Under the power k, to regulate commerce," Congress 
thus passed a law prohibiting every American merchant 
vessel from leaving port ; and this, not for a limited 
period, but without limitation of time. It was re- 
pealed, however, in March, 1809, the act going into 
effect in June of the same year. An act to prohibit 
the importation of certain goods from Great Britain 
and her colonies was passed in April, 1806; and one 
to interdict the commercial intercourse between the 
United States and Great Britain and France was passed 
in March, 1809. 

For the fiscal year ending June 30th, 1877, the total 



Farrar, p. 328. 2 U. S. Statutes, II, p. 451. 



1. VIII. 4. NATURALIZATION. 91 

value of exports was $602,475,220, and of imports 
$451,323,126. 

The power to regulate commerce with the Indian 
tribes is given to Congress. The exclusive right of 
pre-emption to the Indian lands is with Congress, and 
neither States nor individuals can purchase lands from 
the Indians. An Indian tribe is not a foreign nation, 
but a people in a condition of dependence or pupilage, 
sustaining to the United States the relation of a ward 
to a guardian. 

Clause 4. — To establish a uniform rule of naturaliza- 
tion, and uniform laics on the subject of bankruptcies 
throughout the United States. 

Naturalization is the conferring of citizenship. By it 
an alien, or foreigner, is made a citizen. Neither the 
Constitution nor any act of Congress defines citizenship. 
The Fourteenth Amendment declares who are citizens, 
but gives no definition of the term. "All persons born 
or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States, 
and of the States wherein they reside." " Citizens, 
under our Constitution and laws, means free inhab- 
itants born within the United States, or naturalized 
under the laws of Congress." (Kent.) "A citizen is 
a member of the body politic, bound to allegiance on 
the one side, and entitled to protection on the other." 
(Attorney-General Bates.) 

Citizens are either native-born, or naturalized. Every 
person born in the country is, at the moment of birth, 
prima facie a citizen. An alien can become a citizen 
only by compliance with the rule of naturalization 
prescribed by Congress. 

On the twenty-fourth day of June, 1776, the Conti- 
nental Congress resolved, "That all persons abiding in 
any of the United Colonies, and deriving protection from 
the laws of the same, owe allegiance to the said laws, 



92 THE CONSTITUTION. 1. VIII. 4. 

and are members of such Colony." This resolution was 
passed after the Resolution of Independence had been 
decided upon in Committee of the Whole. This is sup- 
posed to have been the law until March, 1781, when 
the Articles of Confederation went into effect, in which 
jurisdiction over the subject was left to the individual 
States. The objections to giving each State the power 
to frame naturalization laws for itself are obvious. One 
State might confer the rights of citizenship after a resi- 
dence of one year, another after two years, and another 
after ten; yet the Constitution provides that, "the 
citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States." 
There was no difference of opinion in the Convention 
as to the propriety of giving to Congress the exclusive 
control of the matter. 

In 1790, Congress passed an act requiring two years' 
residence before a foreigner could become a citizen. In 
1795, the time was extended to five years, and in 1798, 
it was extended to fourteen years. But in 1802, it was 
reduced to five years, which is the time now required. 

The mode of naturalization requires, first, that the 
alien shall make, at least two years before his admis- 
sion — it was three years by the act of 1802, but changed 
to two in 1824 — a declaration, on oath, of his purpose 
to become a citizen of the United States, and to re- 
nounce all allegiance to any foreign prince or state ; 
secondly, that when he applies for admission he shall 
declare, on oath, that he will support the Constitution 
of the United States, and doth renounce all allegiance 
to any foreign prince or state; thirdly, that the court 
admitting him shall be satisfied that he has resided five 
years within the United States, and one year in the 
State or Territory where the court is held, and that he 
has behaved as a man of good moral character. 

The children of persons duly naturalized, who were 
under twenty-one at the date of such naturalization, 



1. VIII. 4. NATURALIZATION. 93 

shall be considered citizens, if residing in the United 
States. 

An alien, coming to this country when a minor, who 
shall have resided in the United States three years 
next preceding his arriving at the age of twenty-one, 
and who shall have continued to reside therein to the 
time of his application, may, after he arrives at the 
age of twenty-one, and after he shall have resided five 
years, in the United States, be admitted a citizen with- 
out the previous declaration. A woman who might 
lawfully be naturalized under the existing laws, mar- 
ried to a citizen, shall be deemed a citizen. 1 

The children of citizens of the United States shall 
be considered citizens, though born abroad. 

If an alien who has made his declaration of intention 
to become a citizen die before he is actually naturalized, 
his widow and children shall be considered as citizens 
upon taking the oaths prescribed by law. 

No alien, who shall be a native citizen or subject of 
any country with which the United States shall be at 
war at the time of his application, shall be then ad- 
mitted to citizenship. 

By act of July 17th, 1862, a soldier of the age of 
twenty-one years and upward, regularly discharged 
from the army of the United States, may be admitted 
to citizenship without a previous declaration of inten- 
tion, and with a single year's residence. 

The admission to citizenship of those who have been 
subjects of other governments, implies the right of ex- 
patriation. This right has been denied by some of the 
European states, and the claim maintained that Amer- 
ican naturalized citizens still owe allegiance to the 
countries where they formerly resided. In July, 1868, 
an act of Congress was passed, expressly declaring the 
right of expatriation, and that " All naturalized citizens 



U. S. Statutes, X, 604. 



94 THE CONSTITUTION. 1. VIII. 4. 

of the United States, while in foreign states, shall be 
entitled to, and shall receive from this government, the 
same protection of persons and property that is accorded 
to native-born citizens in like situations and circum- 
stances. "' 

Within a few years treaties have been made by the 
United States with a number of other nations, in which 
provision is made for the mutual naturalization of 
citizens, thus recognizing the right of expatriation. 
A treaty of this kind was made with Prussia and 
Bavaria in 186$. with Belgium and Hesse in 1869, 
with Great Britain and Wurfcemburg and Baden in 
1870, with Austria in 1871. and with Sweden and Nor- 
way in 1872. 

Though the Constitution gives to Congress the whole 
control of the subject of naturalization, with no limita- 
tion as to those who might be admitted to citizenship, 
every law enacted, from 1790 to 1870, restricted it to 
whites. By act of July 14th, 1870, it was provided: 
"That the naturalization laws are hereby extended to 
aliens of African nativity, and to persons of African 
descent."" As the original statute limited naturalization 
to white aliens, and the act of 1870 extended it to those 
of African descent, the question lias arisen whether the 
Chinese may be naturalized under the present law. In 
April. 1878. Judge Sawyer of the United Sratt-s Circuit 
Court decided this adversely, holding that Chinamen 
are not "white"' in the meaning of the statute. 

Mr. Curtis, in his History of the Constitution, says, 
"the power that was given, by unanimous consent, 
over the subject of naturalization, shows the strong 
purpose that was entertained of vesting in the national 
authority an efficient practical control over the States, 
in respect to the political rights to be conceded to per- 
sons not natives of the country."' In a note he says: ""I 
have called the naturalization power a practical control 
upon the States in the matter of suffrage. It is indi- 



1. VIII. 4. NATURALIZATION. 95 

rect, but it is effectual; for I believe that no State has 
ever gone so far as, by express statutory or constitu- 
tional provision, to admit to the right of voting persons 
of foreign birth who are not naturalized citizens of the 
United States." 1 Mr. Curtis is, doubtless, right in his 
opinion that an alien ought not to be allowed to vote; 
but he is wrong in the statement that no State has ex- 
tended the right of voting to persons of foreign birth 
not naturalized. In a number of the States this right 
is enjoyed, as in Indiana, Michigan, and Wisconsin. 
The Constitution of Indiana permits an alien to vote 
who has been one year in the United States and six 
months in Indiana, and who has declared his pur- 
pose to become a citizen of the United States. The 
new Constitution of Illinois restricts suffrage to citizens 
of the United States. 

By the common law, an alien could not hold real 
estate; and in some of the States a special act of the 
legislature is necessary to enable an alien to hold such 
property. But other States have provided by statute 
that no difference in this respect shall exist between 
an alien and a citizen. 

Naturalization removes the disabilities of alienage, 
and confers, with one or two exceptions, all the rights 
and privileges pertaining to the native-born citizen. 
A naturalized citizen can not hold the office of Presi- 
dent or Vice-President of the United States, nor can he 
be a Representative or Senator in Congress till he has 
been a citizen for a term of years. 

While this clause of the Constitution authorizes Con- 
gress to "establish a uniform rule of naturalization," 
and such a rule has been established, Congress has ex- 
ercised the power of granting naturalization without 
regard to the rule. Foreign territory has repeatedly 
been incorporated into the Union by treaty and other- 



History of the Constitution, II, p. 202. 



96 the cQssnnrnox. 1. vnr. 4, 

wise, and the inhabitants, of whatever race or descrip- 
tion, clothed with the rights of citizenship. The 
President and Senate have thus naturalized whole 
communities, without reference to the sections of the 
act prescribing the mode of naturalization. So Texas, 
with all its people, was admitted into the Union by 
joint resolution of Congress. As the general govern- 
ment has thus naturalized whole masses of people with- 
out any specific authority, the grant to establish a 
uniform rule has not been considered as exhausting the 
power of Congress over the subject. 

In 1870, Congress passed a stringent law to punish 
crimes against the naturalization laws. Great frauds 
had been committed in some of the cities in the issue 
of naturalization papers, thus leading to the casting of 
many fraudulent votes. 

Bankruptcy. — According to English usage, the term 
bankrupt was limited to traders who could not or would 
not pay their debts, while the word insolvent was ap- 
plied to persons not engaged in trade. This distinction 
was recognized in the first law passed by Congress on 
the subject, April 4th, 1800. It refers to "'merchants, 
bankers, brokers, underwriters," etc. But the law of 
August 19th, 1841, makes no such limitations, but re- 

ra to ; -all persons owing debts." The same is true 
of the recent law. passed March 2d. 1867. Its lan- 
guage is, " If any person owing debts," etc. 

The popular usage in the United States makes the 
words bankrupt and insolvent synonymous, and applies 
them to persons not engaged in trade as well as to 
traders. Strictly, a person is insolvent who is not able to 
pay his debts. He becomes a bankrupt when, on his 
own petition, or the petition of one or more of his cred- 
itors, he is declared to be such by the proper law officer, 
called a Register in Bankruptcy. Insolvency thus nat- 
urally precedes bankruptcy. A man seeks to avail 



1. VIII. 4. BANKRUPTCY. 97 

himself of the bankrupt act because he is insolvent, 
and many are insolvent who are never adjudged bank- 
rupts. 

The Constitution gives to Congress the power to pass 
uniform laws on the subject. Prior to the adoption 
of the Constitution the power was exercised by the 
several States. Three bankrupt laws have been en- 
acted by Congress : the first, April 4th, 1800, repealed 
December 19th, 1803; the second, August 19th, 1841, 
repealed March 3d, 1843; the third, March 2d, 1867, 
and repealed in April, 1878, to take effect September 
1st. Thus bankrupt laws have been in force only six- 
teen years in about ninety. 

Some of the States have had laws in regard to in- 
solvency, which have been for the relief of unfortunate 
debtors. It has been held that the States might pass 
laws on the subject, provided they did not contravene 
the Constitution of the United States, or the provis- 
ions of any law of Congress in force at the time. A 
State might thus pass laws releasing the person of 
the debtor from imprisonment; or releasing property 
which he might acquire from debts which he should 
contract after the passage of the law. But a State 
could not release a debtor from debts already incurred, 
nor could it pass laws affecting the citizens of other 
States7 Congress, however, is subject to no such lim- 
itation. While the Constitution prohibits States from 
passing laws which impair the obligation of contracts, 
there is no such prohibition on Congress. 

It has been said that a bankrupt law is intended 
primarily as a remedy for the benefit of creditors; 
while an insolvent law is for the benefit of the debtors. 
The word bankrupt formerly carried with it the sense 
of an offender. Thus the law of 1800 refers only to 
involuntary bankruptcy; the creditors petitioning that 
the debtor may be declared a bankrupt, and his prop- 
erty be divided among his creditors. The idea of fraud 
C. G. 9. 



98 THE CONSTITUTION. 1. YIII. 4. 

on the debtor s part is implied in the wording of the 
statute, and. as before said, that law applies only to 
traders. 

The law of 1841 provides for voluntary as well as in- 
voluntary bankruptcy, and the provisions are appli- 
cable to any person owing debts which he is unable 
to pay. The same is true of the recent law. Most of 
its provisions refer to voluntary bankruptcy. 

In all the laws an allowance is made to the debtor 
who is adjudged a bankrupt. In the law of 1800 the 
amount depended upon the proportion of his debts 
which he was able to pay. If this was less than fifty 
per cent, the allowance could not exceed three hun- 
dred dollars and wearing apparel. If fifty per cent of 
his debts could be paid, he was allowed five per cent, 
but the allowance could not exceed five hundred dol- 
lars. If seventy-five per cent of debts was paid, he 
was allowed ten per cent, provided the allowance did 
not exceed eight hundred dollars. The law of 1841 
exempted furniture and other necessary articles not to 
exceed three hundred dollars, also the wearing apparel 
of the bankrupt and his family. The law of 1867 
makes the limit five hundred dollars, and such other 
property as may be exempted from sale or execution 
by the laws of the State or of the United States. 

The bankrupt, after the various requirements of the 
law have been complied with, receives a ''discharge : ' 
from his debts. The three laws differ somewhat as to 
the influence which the creditors may exert to prevent 
this discharge of the bankrupt from his debts. 

The law of 1800 required that two-thirds of the 
creditors — including both the number of the creditors 
and the value of their claims — should give their 
assent. The law of 1841 provided that a discharge 
should be given unless a majority of the creditors in 
number and value should dissent therefrom in writing. 
That of 1867 provided that " no discharge shall be 



1. VIII. 4. BANKRUPTCY. 99 

granted to a debtor whose assets shall not be equal 
to fifty per cent of the claims proved against his 
estate upon which he shall be liable as the principal 
debtor, unless the assent in writing of a majority in 
number and value of his creditors" be given. It pro- 
vides also that any creditor opposing the discharge 
may present to the court the grounds of his opposition, 
but the court shall decide. 

It is to be feared that debtors, in our country, are 
released too easily from their obligations. "In England, 
bankruptc}^ is a more serious matter. The bankrupt 
not only loses credit; he also, to a great extent, loses 
caste. * * In France, the lot of the bankrupt is still 
more severe ; not only does he lose his social position, 
but the law prevents him from engaging in any other 
business on his own account till he has redeemed his 
outstanding obligations." l 

But even the English laws are far too lenient, accord- 
ing to the opinion of an eminent writer. "It is seldom 
difficult for a dishonest debtor, by an understanding 
with one or more of his creditors, or by means of pre- 
tended creditors set up for the purpose, to abstract a 
part, perhaps the greatest part, of his assets from the 
general fund through the forms of the law itself. 
* * * To have been trusted with money or money's 
worth, and to have lost or spent it, is prima facie evi- 
dence of something wrong, and it is not for the cred- 
itor to prove, which he can not do in one case out of 
ten, that there has been criminality, but for the debtor 
to rebut the presumption by laying open the whole 
state of his affairs, and showing either that there has 
been no misconduct, or that the misconduct has been 
of an excusable kind." 2 

The distinction between a legal obligation and a 



1 Bowen's American Political Economy, p. 211. 

2 Mill's Political Economy, IT, pp. 473, 476. 



100 THE CONSTITUTION. 1. VIII. 5. 

moral one must not be overlooked. The law may dis- 
charge the bankrupt from his debts, but there still 
rests upon him the moral obligation to satisfy the 
claims of his creditors. The legal discharge puts him 
in a position to accumulate again, and thus furnishes 
him the opportunity to provide the means with which 
to pay his debts. Some make this right use of the ad- 
vantage which the law gives them, but many regard 
the legal discharge from their debts as a release also 
from their moral obligations. Bankruptcy is a test, 
though a severe one, of a man's real character. 

Clause 5. — To coin money, regulate the value thereof 
and of foreign coin, and fix the standard of iceights and 
measures. 

All civilized nations use gold and silver for money. 
To coin money is to mold the metal into the required 
form, and to give to it the stamp of the government. 
The power to coin money is an attribute of sovereignty, 
and is therefore properly placed with the general gov- 
ernment. Without doubt, Congress would have pos- 
sessed the power had the Constitution contained no 
specific grant to this effect. A subsequent section pro- 
hibits the States from coining money. 

Under the Articles of Confederation the power of 
coining money was possessed by the States and Con- 
gress jointly, though Congress had the "sole and ex- 
clusive right and power of regulating the value of coin 
struck by their own authority, or by that of the re- 
spective States." 

By act of April 2d, 1792, Congress made provision for 
issuing money by the establishment of the Mint. This 
was located at Philadelphia, where Congress held its 
sessions till 1800, and it has never been removed from 
that city. Branch Mints have been established at 
New Orleans; Charlotte, N. C. ; Dahlonega, Ga. ; San 
Francisco, CaL; Carson City, Nevada; and Dallas City, 



I. VIII. 5. POWER TO COIN MONEY. 101 

Oregon. Assay offices have been established at New 
York, and at Boise City, Idaho. By act of February 
12th, 1873, Mints are established at Philadelphia, San 
Francisco, Carson, and Denver; Assay Offices at New 
York; Boise City, Idaho; and Charlotte, N. C. 

The coinage act of 1792 made our system bi-metal- 
lic; both gold and silver coins were made real money. 
The gold coins were three : the eagle (of the value of 
ten dollars), the half-eagle, and the quarter-eagle. The 
silver coins were five : the dollar, the half-dollar, the 
quarter, the dime (written "disme" in the statute), 
and the half-dime. All these were legal tender in pay- 
ment of all debts. There were also two copper coins 
which were subsidiary, or token, money : the cent and 
the half-cent. 

The coins both of gold and silver have a small frac- 
tion of alloy, and the alloyed metal is called standard 
gold or silver. The weight of the coin is thus ex- 
pressed in the standard metal, while its value depends 
entirely upon the amount of pure metal which it con- 
tains. In the gold coins made under the act of 1792, 
there were 27 grains of standard, and 24.75 of pure, 
gold to the dollar;, and in the silver coins, 416 grains 
of standard, and 371.25 grains of pure, silver. Gold 
was thus estimated to be worth fifteen times the same 
weight of silver. 

In 1834 an ounce of gold had become worth consider- 
ably more than fifteen ounces of silver, and as a conse- 
quence the gold coins were melted up and sold as 
metal. In order to retain both metals in circulation as 
money, it was necessary either to reduce in weight the 
gold coins, or to increase the silver. A little reflection 
will show that in such cases the metal which is under- 
valued must always be reduced; the one that is over- 
valued being really the standard. A reduction of 
something more than six per cent was accordingly 
made in the weight of the gold coins. In 1837 the 



102 THE COX.^TITTTIOX. 1. VTTT 5. 

alloy of both metals was fixed at one-tenth : making, 
with the change of ISM, the dollar to contain _" v 
grains of standard, and 23.22 grains of pure, gold T or 
412.5 grains of standard, and 371.25 grains of pure, sil- 
ver. This reduction in the gold coins changed the ratio 
of gold to silver from fifteen to one to sixteen to one. 

Bnt presently the equilibrium was again disturbed, 
silver having become worth more than the or. 
teenth part of gold. This was owing, in part at least, 
to the increased production of gold in the Australian 
and Californian mines. If both silver and gold are to 
be retained as full legal tender, the silver coins must 
be reduced in weight as those of gold were in 1834. 
There was another method, however — to give up the 
bi-metallic system; to make gold alone the legal stand- 
ard, and have the silver coins subsidiary. This was 
what the government determined upon; and in 1851 
the Secretary of the Treasury recommended that the 
silver coins be reduced in weight, and be made legal 
tender for small sums only. 

A bill was accordingly prepared which became a law 
February 21, 1853. providing that two half-dollars, fonr 
quarters, etc., should contain 384 ^grains of standard 
silver, instead of 412.5; and that these coins should be 
a legal tender for only five dollars. The silver dollar 
was not mentioned in the act, and so remained as a 
nominal coin, but it formed from that time no part of 
the circulating money of the country. In this great 
monetary change the United States followed the exam- 
ple of England, where gold was adopted as the only 
standard in 1816, silver being a legal tender for only 
forty shillin_ 

Silver was thus practically demonetized in 1853, and 
from that time was used only as change or token 
money. In 1873 a general coinage act was passed, 
which prohibited the coining of all coins except those 
enumerated in the act. As the silver dollar was not 



1. VIII. 5. AMERICAN COIN. 103 

named in the list, this legislation completed the de- 
monetization of silver, and declared that the gold dol- 
lar "shall be the unit of value." 

From 1792 to 1875 the ratio of the metallic values of 
gold and silver had ranged between fifteen and sixteen 
to one. But in the latter year silver began to decline 
in value, so that in July, 1876, the silver in the old 
dollar of 412.5 grains was worth only 79J cents. There 
were also great fluctuations in its value, the variation 
amounting to twenty-five per cent within a period of 
five months. About this time the question of recoin- 
ing the silver dollar, and making it again a full legal 
tender, began to be agitated, and by the act of Febru- 
ary 28, 1878, it was finally done. The bill was vetoed 
by President Hayes, but was subsequently passed by 
the requisite majority in each House. The act pro- 
vided for a monetary convention of representatives 
from different nations to agree, if possible, upon a ratio 
of value between silver and gold. Such an agreement 
among the leading nations might perhaps make feasi- 
ble the concurrent use of both gold and silver as full 
money; without it, one metal would probably soon 
drive the other out of circulation. 

Besides gold and silver coins, we have five-cent and 
three-cent pieces made of copper and nickel, and two- 
cent and one-cent pieces of copper. The tendency of 
the government to overvalue the cheap coins. used for 
change, is shown in the fact that the cent issued under 
the acts of 1864 and 1873 contains less than 46 grains 
of copper, while that of 1792 contained 264 grains. 

The coinage act of 1873 provides for the following 
coins: Gold — the dollar piece; the quarter-eagle, or 
two-and-a-half-dollar piece; the three-dollar piece; the 
half-eagle, or five-dollar piece ; the eagle, or ten-dollar 
piece ; and the double-eagle, or tw T enty-dollar piece. 
The silver coins are a trade-dollar; a half-dollar, or 
fifty cent piece; a quarter-dollar, or twenty-five-cent 



1CM: the coNsnnnfl 1. vhl 5. 

piece: a dime, or ten-cent piece. The "minor coins 

a five-cent piece, a three-cent piece, and a one-cent : 

The gold dollar was made the unit of value; the 
standard weight is 25.8 grains, and the weight of pure 
gold is '23.22 grains, the alloy being one-tenth. The 
gold coins are a legal tender for all sums. 

To the silver coins provided for by the act of 1873 
we must add the dollar of 412.5 grains. There are 
thus three distinct classes of silver coins: (a) the trade- 
dollar, (b) the dollar, and < the subsidiary coins — 
half-dollars and smaller pieces. The trade-dollar was 
not intended for circulation at home, but for trade with 
Japan and other Eastern nations. It weighs 420 grains 
of standard silver. It is a coin, but not money; not 
even token money, as since July. 1876, it has not been 
a Legal tend any sum. The dollar is money 

proper, legally on an equality with gold. The smaller 
silver coiDS are token money, a legal tender for five 
dollars only. They were slightly increased in weight 
in 1873, and now weigh 885. S grains, or 2-5 grammes to 
the dollar. 

Formerly the government made no charge for coining 
money, but any person might bring gold and silver bul- 
lion and have it coined free of expense. If. however, he 
preferred to take the value in coins at once, one-half of 
one per cent was deducted. Subsequently, the law pro- 
vided that the cost of preparing the metal for coining 
should be defrayed by the person to whom the bullion 
belonged. In 1853 there was a seignorage, or char^ 
coining, of one-half of one per cent; in 187: 
made one-fifth: and in 1875 it was wholly removed. 
But while there is free coinage of gold, silver is coined 
only for the government, as silver coins are largely 
overvalued: but standard silver is converted into trade- 
dollars, or into bars, at 3oet 

The decimal system for our _ was recommended 

in a report of the Financier, January. 1782. In July, 



1. VIII. 5. FOREIGN COIN. 105 

1785, Congress resolved that the money unit of the 
United States be one dollar, and that the decimal sys- 
tem be followed. In August, 1786, they provided for 
the issue of two gold coins, the eagle and the half- 
eagle ; of four silver coins, the dollar, the half-dollar, 
the double-dime, and the dime; and of two copper 
coins, the cent and the half-cent. 

Though the dollar was made the unit of the money 
system in 1785, the accounts had been kept in dollars 
for more than ten years. 

Foreign Coin. — Congress has repeatedly regulated the 
value of foreign coin ; that is, has established the rates 
at which it should be received at the Custom-house 
for duties on goods, or in payment for the public lands. 
The sovereign, or pound sterling of Great Britain, is 
taken at $4.86 T %%, and this is to be the par of exchange 
between the two countries, instead of $4.44|. For most 
of the time the coin of some foreign countries has been 
a lawful tender for debts and payments; but in 1857 
all laws of this kind were repealed, and none have been 
enacted since. 

Under Clause 2 of the present section, which author- 
izes Congress to borrow money, we have spoken of the 
issue of Treasury Notes. These have been issued repeat- 
edly by the general government, the notes being of 
various denominations, generally redeemable in a year 
or other short period, though sometimes with the time 
of redemption left indefinite. Generally they have 
borne interest, but not always. They were receivable 
by the United States for all taxes and duties, and for 
public lands, and were paid out to such creditors of 
the government as were willing to receive them at par. 
In most cases they were made payable to order and 
were transferable by delivery and indorsement, though 
some were made payable to bearer, and were transfer- 
able by delivery. In 1862, and the years immediately 
subsequent, they were made legal tender for all debts, 



106 THE CONSTITUTION. 1. "TTT. 5. 

public and private, except interest on the bonded debt 
: the United States, and duties on imp. :~ 

These Treasury notes are what the Constitution calls 
"bills of credit.*' The States are forbidden to "emit 
bills of credi: as well as : :oin money,"* and to 
u make any thing but gold and silver coin a tender in 
payment of debts. 7 ' The Constitution places the coin- 
ing of money among the powers of Congress, but 
nothing in regard to their issuing bills of credit, and 
nothing as to their making even gold and silver a 
legal tender. In the draft of the Constitution, as 
reported by the Committee of Detail, Congress was 
authorized to "coin money and emit bills on the 
credit of the United St: ~ But the latter clause 
was ken out. A suggestion was made in the Con- 

vention to prohibit the making of such bills a legal 
tender, but no motion to that effect was made. 

The Constitution, therefore, does not confer upon 

_ ~ in specific terms the authority to emit bills 

of credit, or to make them, if issued, legal tender: nor 

it prohibit the exercise of such authority As 
have seen, the government has assumed it as one of 
the powers of bc vereignty 

The question whether such notes, made by Congress 
Legal tender in payment of debts, could be used to pay 
lebts contracted prior to the passage of the law. has 
been twice before the Supreme Court. In the first case 
the decision was adve:- : -ach payment; but. subse- 
quently, it was decided in favor of it. There can be no 
doubt that this second decision accords with the gen- 
eral theory and practice of the people from the time 
the law was issed until the time of the first decision. 
During this period of some eight years, debtors ten- 
dered and creditors received these government notes in 
payment of debts without protest or unwillingne— 

This second decision covers the whole ground, and 
establishes the right of the government to issue bills 



1. VIII. 5. TREASURY NOTES. 107 

of credit, and to make them a lawful tender for all 
debts, as well past as future. At the same time it is 
clear that this right is one which should be exercised 
with the greatest caution, and only in times of extreme 
exigency. 

Some writers make no difference between coining 
money and issuing Treasury notes; holding that a legal 
tender note is as truly money, and coined* money, as a 
silver dollar or a gold eagle. "The government paper 
now, 1866, forming, almost exclusively, the currency 
of the country, is the mone} T of the country. It makes 
no pretension to being a substitute or a representative. 
All substitutes for money are redeemable in that; and 
that is redeemable in nothing, so long as it constitutes 
money and is itself a legal tender for all the purposes 
of money." ! So Mr. Tiffany holds that the value of 
money arises from the government stamp. The arti- 
cle stamped may be gold, silver, or any thing else. 
"Whether the coin shall be metal, leather, parchment, 
paper, or any other substance, is a question of expedi- 
ency." 2 

It seems to be much simpler as w T ell as truer to 
say, that the present government paper, circulating as 
money, is a government loan — a forced loan. Every 
note is a promise to pay by the government. It is a 
note like a note of hand drawn by a private citizen, or 
a note issued by a bank. The difference is, that a 
bank-note is a promise to pay on demand, and the 
promissory note of an individual is a promise to pay 
at some specified time, while on the government note 
the time is indefinite. A gold eagle has upon it the 
stamp of the United States, which is a guaranty that 
it contains so many grains of gold. It bears its value 
upon its face — ten dollars. But a legal tender note 



1 Farrar's Manual of the Constitution, p. 339. 

2 Tiffany's Treatise on Government, p. 223. 



108 THE CONSTITUTION. 1. VIII. 5. 

does not purport to be ten dollars; it is a mere cer- 
tificate of indebtedness for that amount on the part of 
the government to the holder of the note. " The United 
States will pay the bearer ten dollars/' If this piece 
of paper were itself ten dollars, there would be no 
subsequent transaction requisite between the holder 
and the government. As between man and man it is 
given and. taken as in full satisfaction of debt ; but he 
who receives it holds it as a valid debt against the 
United States. When the government pays gold to its 
creditor, the debt is paid. When it pays him legal 
tender notes, it gives him a certificate of indebtedness 
which he may transfer to another. If the Treasury 
notes in the hands of the people are veritable money, 
as truly so as gold, then the United States is not in- 
debted to those who hold them any more than it is to 
those who have gold eagles in their possession; and 
the Treasury Department should not report these 
Treasury notes as a part of the national debt. 

In authorizing Congress to "borrow money" as well as 
"coin money and regulate the value thereof," and in pro- 
hibiting the States from coining money and emitting 
bills of credit, the Constitution places in Congress the 
control of the whole subject of money; not only of gold 
and silver coin, but of all substitutes for them. This 
control, however, so far as it relates to the bank-note 
currency of the country, Congress has not chosen to ex- 
ercise, except partially, until within a few years. A 
bank of the United States was chartered February 25th, 
1791, as a fiscal agent of the government, with a capital 
of ten millions, and to continue twenty years. On the 
tenth of April, 1816, another w T as chartered, with a 
capital of thirty-five millions, to continue for the same 
period. Congress refused to re-charter the first, and 
President Jackson vetoed the bill to renew the charter 
of the second. In 1841, two bills in succession were 
passed to establish a United States bank, but both 



1. VIII. 5. BANK-NOTE CURRENCY. 109 

were vetoed by President Tyler. Congress also author- 
ized the establishment of banks in the District of 
Columbia. 

With these exceptions the charters of the banks of 
the country have been granted by the several State 
legislatures. So familiar had the people become with 
the currency furnished by these State banks, that when 
Congress passed, February 25th, 1863, the act to estab- 
lish National banks, many supposed that the general 
government was usurping an authority which belonged 
to the States. On the contrary, we are forced to in- 
quire, where did the States obtain the power to charter 
banks, and thus provide the paper circulation of the 
country? "Is not the right," says Mr. Webster, "of 
issuing paper intended for circulation in the place, 
and as the representative, of metallic currency, derived 
merely from the power of coining and regulating the 
metallic currency? Could Congress, if it did not pos- 
sess the power of coining money and regulating the 
value of foreign coins, create a bank with power to 
circulate bills? It would be difficult to make it out. 
W r here, then, do the States, to whom all control over 
metallic currency is altogether prohibited, obtain this 
power?" 1 

The States have established banks because Congress 
tacitly left it to them in great measure. The authority 
was in the general government; but, as Congress did 
not choose to exercise it, the State legislatures went 
forward in this work till such time as the general gov- 
ernment should see fit to provide a bank-note currency 
for the whole people. 

The act of June 3d, 1864, a substitute for that of Feb- 
ruary 25th, 1863, provided for a Bureau of Currency in 
the Treasury Department, at the head of which is a 
Comptroller. Banking associations may be formed with 



Tiffany, p. 227; Storr, II, Co. 



HO THE CONSTITUTION. 1. VIII. 5. 

power to issue bills, receive deposits, loan money, and 
perform the ordinary functions of banks. By an act of 
March, 1865, amended July 13th, 1866, a tax of ten per 
cent was levied on the notes of State banks used for 
circulation after August 1st, 1866. This, of course, ex- 
cluded these notes from circulation, and the present 
bank currency of the country consists of the notes of 
National banks. 

This circulation was at first limited to three hundred 
and fifty-four millions, and was distributed among the 
States and Territories according to wealth and popula- 
tion jointly; but both these provisions have been re- 
pealed. It is secured by a deposit of United States 
bonds in the treasury of the United States. The circu- 
lation of a bank can not exceed ninety per cent of the 
amount of bonds deposited; ranging from sixty per 
cent when the capital is three millions and over, to 
ninety per cent when not over half a million. 

The advantages of this national currency are, that the 
payment of the notes is guarantied by the United States, 
that a uniform currency is provided, and that the notes 
are receivable for all dues to the United States except 
duties on imports. 

Much effort has been made to secure an international 
coinage. As the pound sterling contains 113 grains of 
gold, and the American half-eagle 116.1, if the latter 
were reduced 3.1 grains in weight, or about thirteen 
cents in value, the two coins would be equal in value. 
This would make four shillings equivalent to one dollar. 
So if the twenty-five-franc piece were increased about 
four cents, it would equal the pound sterling. These 
slight changes would secure uniformity in the gold coins 
of England, France, and the United States. 

Weights and Measures. — There is propriety in connect- 
ing weights and measures with money. By money we 
express the prices, or relative values, of all commodi- 
ties, and bv weights and measures we ascertain the 



1. VIII. 5. WEIGHTS AND MEASURES. Ill 

quantities of commodities. As we need uniformity in 
money, so we need it in all measures of quantity; and, 
therefore, both subjects were committed to Congress. 

The importance of uniformity was urged by President 
Washington in his message to the first Congress; and 
various reports on the subject have been presented at 
different times. A very elaborate one was prepared by 
John Quincy Adams when Secretary of State, in 1821, 
but the recommendations were never embodied in a 
statute. 

By an act of Congress, May 19th, 1828, the brass troy 
pound weight, procured by the minister of the United 
States at London, was made the standard troy pound of 
the Mint of the United States. A series of standard 
weights corresponding to this was ordered to be made, 
from the hundredth part of a grain to twenty-five 
pounds. In 1836 the Secretary of the Treasury was di- 
rected to cause a complete set of weights and measures 
adopted as standards to be delivered to the governor of 
each State that a uniform standard might be estab- 
lished throughout the United States. 

The Metric System was legalized by act of Congress 
in July, 1866; and in 1873, and again in 1876, appro- 
priations were made for procuring metric standards for 
the States, and for the construction and verification of 
standard weights and measures for the custom houses 
and for the several States. 

This is a decimal system, and its unit is a meter, 
which is equal to 39.37 inches. Its multiples are, the 
dekameter (10 meters), the hectometer (100 meters), the 
kilometer (1,000 meters), and the myriameter (10,000 me- 
ters). The subdivisions are, the decimeter (y 1 ^- of a me- 
ter), the centimeter (y-J-Q of a meter), and the millimeter 
(two °f a meter). 

The unit of the measures of surface is the centare, 
which equals one square meter. The others are the 



112 THE CONSTITUTION. 1. VIII. 6. 

are (100 square meters), and the hectare (10,000 square 
meters). 

Of measures of capacity the liter is the unit, which 
equals one cubic decimeter. Its equivalents are 0.908 
quarts in dry, and 1.0567 in liquid measure. The other 
denominations are formed like those in measures of 
length — the dekaliter, hectoliter, and kiloliter ; and the 
deciliter, centiliter, and milliliter. 

The unit of the measures of weight is the gram, which 
is the weight of one cubic centimeter of water at its 
maximum density, and is the equivalent of 15.432 
grains avoirdupois. Then we have, as before, the mul- 
tiples, dekagram, hectogram, kilogram, myriagram, quintal, 
and millier or tonneau (2204.6 pounds) ; and the subdi- 
visions, decigram, centigram,, and milligram. 

The legalizing of this metric system is a step towards 
international uniformity. The advantages of the use 
of the same weights and measures by all civilized na- 
tions, and of the same gold and silver coins, are many 
and obvious; but it will be exceedingly difficult to 
change, in these respects, the habits of nations fixed by 
long usage. 

By act of July 27th, 1866, the Postmaster-General was 
required to furnish post-offices exchanging mails with 
foreign countries postal balances, denominated in grams 
of the metric system; and, until otherwise provided by 
law, one-half ounce avoirdupois was to be taken as 15 
grams (15 grams being equal to .529 oz). 

Clause 6. To provide for the punishment of counterfeit- 
ing the securities and current coin of the United States. 

The right to punish counterfeiting would follow from 
the right to coin money. By " securities " are meant all 
certificates of indebtedness, such as bonds, Treasury 
notes, etc. The word stock, or stocks, is often used to 
denote a debt due by a government on which it pays 
interest. Thus we say that a person holds ten thousand 



1. VIII. G. COUNTERFEITING. 113 

dollars of United States securities, or twenty thousand 
dollars of Ohio stock. 

The general government punishes the making and 
also the passing of counterfeit money or securities. It 
is held that the States may also punish the passing of 
counterfeits on United States coin or securities. 

Congress has passed laws punishing the making, 
forging, or counterfeiting, and the passing, uttering, or 
publishing, of the coin of the country, the notes of the 
United States bank, the Treasury notes, the fractional 
currency, the notes of the National banks, the excise 
stamps used for internal revenue, letters patent, post- 
age stamps, stamped envelopes, and custom-house cer- 
tificates. 

The law now in force relating to counterfeiting the 
coin of the United States was passed in February, 1873. 
It provides that if any person, except as now author- 
ized by law, shall make, or cause to be made, or shall 
utter or pass, or attempt to utter or pass, any coins of 
gold or silver, whether in the semblance of the coins 
of the United States or of foreign countries, every per- 
son so offending shall be punished by fine not exceed- 
ing five thousand dollars, and by imprisonment for a 
term not exceeding ten years. The penalty for coun- 
terfeiting the "minor coins" is a fine not exceeding one 
thousand dollars, and imprisonment not exceeding three 
years. 

The law of June 30th, 1864, provides that if any per- 
son shall falsely make, counterfeit, or alter, or shall pass, 
utter, or publish any obligation or security of the United 
States, etc., he shall, on conviction, be punished by fine 
not exceeding five thousand dollars, and by imprison- 
ment and confinement at hard labor not exceeding fif- 
teen years. The act also provides that the words "ob- 
ligation or other security of the United States " shall 
be held to include "all bonds, coupons, national cur- 
rency, United States notes, Treasury notes, fractional 
c. G. :o. 



114 THE CONSTITUTION. 1. VIII. 7. 

notes, checks for money of authorized officers of the 
United States, certificates of indebtedness, certificates of 
deposit, stamps, and other representatives of value, of 
whatever denomination, which have been or may be 
issued under any act of Congress." 

Clause 7. — To establish post-offices and post-roads. 

A Post-office Department was established before the 
Declaration of Independence. In July, 1775, the Conti- 
nental Congress made provision for such a department, 
and Dr. Benjamin Franklin was placed at the head of 
it, with the title of " Postmaster-General of the United 
Colonies." The Articles of Confederation gave Congress 
"the sole and exclusive right and power of establishing 
and regulating post-offices from one State to another, 
throughout all the United States, and exacting such 
postage on the papers passing through the same as may 
be requisite to defray the expenses of the said office." 

"By the authority of two short words, 'establish post- 
offices,' the government have instituted an establish- 
ment employing more men, controlling more patronage, 
and collecting and disbursing more revenue, than suf- 
ficed, within a few years past, for the administration of 
the whole government." 1 In 1790, there were seventy- 
five post-offices in the United States, and the expend- 
iture for that year was $32,140. In 1876, there were 
36,383 post-offices, the mails were transported 136,269,708 
miles, and the expenditures were $32,796,186. The ex- 
penditures exceed the receipts by more than $4,000,000. 

The Post-office Department is under a Postmaster- 
General, and three Assistant Postmasters-General. Post- 
masters whose compensation is less than one thousand 
dollars, are appointed by the Postmaster-General, and 
may be removed by him. In all other cases the ap- 



^arrar, p. 346. 



1. VIII. 7. POST-OFFICES AND POST-ROADS 115 

pointment, which is four years, is made by nomination 
of the President and confirmation by the Senate. This 
class, which numbers less than two thousand, are paid 
salaries. The others receive the rents from boxes, and 
a percentage on the sale of stamps and other office re- 
ceipts. Prior to 1864 all the postmasters received their 
compensation in this way. Except in the city of New 
York, where the salary is $8,000, no postmaster receives 
over $4,000 a year. The salary is not expected to ex- 
ceed one-half of the gross revenue of the office. The 
amount paid for the transportation of the mail is nearly 
three times that paid to the postmasters. In a few in- 
stances the income of the Post-office Department has 
equaled or exceeded the expenditures. As the popula- 
tion of the country becomes more dense, the relative cost 
of transporting the mails may be expected to diminish. 

Mailable matter is divided into three classes, namely: 
first, letters; second, regular printed matter; third, mis- 
cellaneous matter. (1) Postage on letters not exceeding 
a half-ounce in weight is three cents. (2) On news- 
papers and other periodicals sent regularly once a week 
or oftener, the postage is two cents a pound prepaid. 
The matter is weighed in bulk. If sent less frequently 
than once a week, the postage is three cents a pound. 
Newspapers are carried free to subscribers in the county 
in which they are published. (3) Mailable matter of 
the third class is divided into two classes, (a) On 
books, catalogues, pamphlets, transient newspapers, and 
periodicals, etc., the postage is one cent for two ounces 
or less, (b) On blank books, book manuscript, and 
merchandise the postage is one cent for each ounce. 
Of third class mailable matter no package may exceed 
four pounds in weight. Less than one-tenth of the 
mailable matter in weight belongs to the first class. 

Letter postage is now three cents for any distance 
within the United States. Formerly the rates were 
much higher, and were different for different distances. 



116 THE CONSTITUTION. 1. VIII. 7. 

From 1792 to 1799 there were nine rates, ranging from 
six cents for thirty miles and less, to twenty-five cents 
for a distance over four hundred and fifty miles. From 
1799 to 1816 there were six rates: the lowest, eight 
cents for forty miles ; the highest, twenty-five cents 
for over five hundred. During the year 1815, these 
rates were fifty per cent higher. From 1816 to 1845 
the rates were six cents, ten, twelve and a half, eigh- 
teen and three-fourths, and twenty-five, for distances 
from thirty miles to four hundred and upwards. In 
1845 the rates were greatly reduced in amount, and 
the system simplified. Under three hundred miles the 
postage was five cents; over that distance, ten cents. 
In 1851 this was changed to three cents for three thou- 
sand miles, if prepaid, and five cents if not prepaid; 
over three thousand miles, double these rates were 
charged. In 1863 the present rate was established — 
three cents to any part of the United States. In 1872, 
postal cards were authorized, which are carried in the 
mails at a postage charge of one cent each, including 
the cost of the card. 

Until 1845, letters were single or double, according 
as there was one piece of paper or two; since that 
time a letter or parcel not exceeding half an ounce 
has been deemed a single letter. Prior to 1851 there 
was no reduction for prepayment. In that year a dif- 
ference of two cents was made, as stated above. In 
1855, prepayment was required, and this continues to 
be the rule. 

Postage stamps were introduced in 1847, but did not 
become general till 1855, when letters were required 
to be prepaid. Stamped envelopes were furnished first 
in 1852. 

In 1855, for the greater security of valuable letters, 
the Postmaster-General was authorized to establish a 
plan for registration. A fee of ten cents besides the 
regular postage is charged for registering a letter. 



1. VIII. 7. POST-OFFICES AND POST-KO ADS. 117 

The government takes special charge of such letters, 
but does not hold itself responsible if they are lost. 

In 1864 the postal money-order system was established. 
This enables one who wishes to send money to a cor- 
respondent to do it by depositing the amount with a 
postmaster, and receiving an order on the postmaster 
of the place where his correspondent lives. A small 
fee is charged, ranging from ten to twenty-five cents 
according to the amount of the order. No order is 
issued for more than fifty dollars. The postmaster is 
entitled to one-third of the fees collected by him, and 
one-fourth of one per cent of the orders which he pays. 
Money orders are exchanged between the United States 
and Canada, Great Britain and Ireland, Germany, 
Switzerland, and Italy. 

In 1863, the Postmaster-General was authorized to 
provide for the free delivery of letters by carriers, in 
cases which, in his judgment, might justify it. In 
1865 the system of free delivery was required to be 
established in every place containing a population of 
fifty thousand, and at such other places as might be 
thought best. In 1873, letter carriers were authorized 
in all places containing not less than twenty thousand 
inhabitants. The postage on drop letters is two cents 
in places where there is free delivery; in other places, 
one cent. 

Letters unclaimed for a certain time are advertised; 
if not called for, they are sent to the Dead-letter Office. 
Here they are opened and returned to the Avriters. 
During the j r ear ending June 30th, 1872, there were 
4,241,374 dead letters. The nam'e and address of the 
writer upon the envelope secures its return to him if 
not called for. 

The franking privilege, or privilege of sending and 
receiving mail matter free, was formerly enjoyed by 
the President, Vice-President, the Cabinet officers, the 
Members of the Senate and House of Representatives, 



118 THE CONSTITUTION. 1. VIII. 7. 

the Delegates from the Territories, and some others. 
In general, it was limited to the term of office, but 
Senators and Representatives could retain it till the' 
December following the expiration of their term. To 
each of the first four Presidents it was voted for the 
remainder of his life, and subsequently it was con- 
ferred for life on all Ex-Presidents. It has also been 
voted to the widows of the Presidents during their 
lives. In February, 1873> the franking privilege was 
abolished, the act to take effect the first of July fol- 
lowing. Modifications have since been made. The act 
of March, 1877, provides that letters and packages on 
government business may be sent free from the depart- 
ments, and that Senators and Representatives may re- 
ceive and send all documents printed by Congress. 

Mail Routes. — Obstruction of the mails is forbidden 
under heavy penalties, as is the carrying of mail 
matter outside of the mails by public carriers. 

In 1825 it was enacted, " That no other than a free 
white person shall be employed in conveying the mail; 
and an} T contractor who shall employ, or permit, any 
other than a free white person to convey the mail, 
shall, for every such offense, incur a penalty of twenty 
dollars." This disqualification continued for forty years; 
it was removed March 3d, 1865. 

The power to establish post-roads has been inter- 
preted to include the power of making internal im- 
provements. In 1803, Congress authorized three per 
cent of the net proceeds of the sale of public lands in 
the State of Ohio to be paid to that State for the 
construction of roads." In 1806, an act was passed for 
the construction of the Cumberland Road — more com- 
monly called the National Road — from the River Poto- 
mac to the Ohio. Both these acts were approved by 
Mr. Jefferson, as President, though in one of his mes- 
sages he expresses the opinion that Congress, under 
the Constitution, does not possess the power of making 



1. VIII. 8. COPYRIGHTS AND PATENTS. 119 

roads. While doubting the existence of the power, he 
appeared to favor an amendment to the Constitution 
" conferring it upon Congress. 

As the object of granting to Congress the power to 
establish post-offices and post-roads was to give them 
the control of the transmission of correspondence, it is 
claimed that the electric telegraph should be managed 
by the government. The control over this agency, it 
is said, can be abdicated by the government with no 
more propriety than that over correspondence by rail- 
road or steamboat. The subject was referred to com- 
mittees in the Forty-second Congress, and favorably 
reported on. The plan proposed provides that tele- 
grams be received and distributed through the post- 
office, and transmitted like other postal matter by 
parties owning and operating the lines, and contract- 
ing to perform the service at rates fixed by Congress. 1 

Clause 8. — To promote the progress of science and 
useful arts, by securing, for limited times, to authors and 
inventors the exclusive right to their respective writings 
! and discoveries. 

This clause authorizes Congress to issue copyrights to 
authors, and patents to inventors. There is no limita- 
tion to science in the strict sense of the word, nor to 
the useful as distinguished from the fine arts. All 
books, maps, charts, musical compositions, engravings, 
photographs (or negatives), chromos, statues, etc., what- 
ever the subject may be, are included, and so are all 
inventions. There are many copyrights and patents 
issued which promote the progress neither of science 
nor of the useful arts. But there can be no question 
as to the propriety of giving to authors and inventors 
the exclusive right for a limited time to their works. 

Copyrights. — In England authors have rights to their 



1 North American Keview, July, 1873. 



120 THE CONSTITUTION. 1. VIII. 8. 

works b} T common law as well as by statute; but in 
this country the right is derived entirely from legisla- 
tion. Prior to the adoption of the Constitution, the 
States granted copyrights, and the first act of Congress 
on the subject recognized the rights thus granted. The 
first law was enacted in 1790, and gave to the authors 
the exclusive right to their works for fourteen years, 
Avith liberty of renewal for a like period. In 1831 the 
term was made twenty-eight years, with the right to 
renew for fourteen years longer. If the author has died, 
the renewal may be made by the widow or children. 

A copyright is obtained as follows : A printed copy 
of the title of the book, or a description of the paint- 
ing or other article for which a copyright is desired, 
must be sent to the Librarian of Congress, and within 
ten days from the publication two copies of the book, 
or a photograph of the painting, must be sent to the 
said Librarian. In every copy of the book there must 
be entered on the title page, or the page following, 
the words "Copyright, 18 — , by A. B." The copyright 
now issued by the Librarian of Congress was formerly 
issued by the Clerk of the District Court of the United 
States the present law having been enacted in July, 
1870. In books printed early in the century, the 
copyright entry on the page following the title page 
was full and formal, sometimes covering the entire 
page. 

The copies of books and other articles for which 
copyrights were obtained were kept in the Department 
of State till 1859, when they were transferred to the 
Department of the Interior. In 1870, they were placed 
under the control of the Librarian of Congress. When 
the Smithsonian Institution was established in 1846, 
Congress provided that a copy of every book for which 
a copyright was granted should be placed in the library 
of that institution, and another copy in the Congres- 
sional Library. These seem to have been in addition to 



1. VIII. 8. COPYRIGHTS AND PATENTS. 121 

the copy deposited with the Clerk of the District Court 
when the copyright was obtained. In 1859 the pro- 
vision as to the copy for the library of the Smith- 
sonian Institution was repealed. Two copies are now 
sent to the Librarian of Congress, as stated above. 
During the year ending December 1st, 1877, copyrights 
were entered for 4,476 volumes of books, and for 3,518 
pamphlets and periodicals. The whole number of 
copyrights entered during the year was 13,979. 

If there are different editions of the work issued at 
the same time, the two copies deposited must be of 
the best edition; a copy of every subsequent edition 
in which any substantial changes are made must also 
be sent. The penalty for failure to send these copies 
is twenty-five dollars. 

A copyright is assignable in law, but the assign- 
ment must be recorded in the office of the Librarian 
of Congress within sixty days. The mode of securing 
a renewal of a cop3a'ight is the same as for obtaining 
the original; it must be done within six months be- 
fore the expiration of the first term. 

The subject of international copyright has been dis- 
cussed with much earnestness by authors and publish- 
ers, and organizations have been formed for the pur- 
pose of securing the necessary legislation. Thus far, 
however, there has been no action of Congress on the 
subject. 

Patents. — Provision was made by Congress in 1790 
for giving to inventors the exclusive right to their 
discoveries. From that time to the present, patents 
have been issued, the number increasing each year. 
At first, applications for patents were made to the 
Secretary of State, and the decision was made by a 
Board, consisting of the Secretary of State, the Secre- 
tary of War, and the Attorney-General. In 1793 the 
Secretary of State alone was authorized to issue patents. 
In 1836, an office, or bureau, was created in the Depart- 
C. G. 11. 



122 THE CONSTITUTION. 1. VIII. 8. 

ment of State, under the name of the Patent Office, 
the chief officer being styled the Commissioner of 
Patents. From that time, patents have been issued 
by the Commissioner. The Patent Office was trans- 
ferred to the Department of the Interior in 1849, 
when this latter department was created. Originally 
patents were signed by the President of the United 
States; then by the Secretary of State and the Com- 
missioner of Patents; now by the Secretary of the In- 
terior and the Commissioner. 

The term for which a patent was valid was fourteen 
years originally, but in 1870 it was made seventeen 
years. It is competent for Congress to extend the 
time of a patent, whether application be made before 
or after the expiration of the original term. In 1836 
the power to extend for seven years if the patentee 
had failed to receive a suitable return for his time, 
ingenuity, and expense, was conferred on a Board, con- 
sisting of the Secretary of State, the Commissioner of 
Patents, and the Solicitor of the Treasury. But such 
extension must be granted before the expiration of 
the time for which the patent was originally issued. 
Since 1848 the power to extend in such cases has been 
exercised by the Commissioner. 

Prior to the formation of the Constitution the issu- 
ing of patents, as well as the granting of copyrights, 
was lodged in the several States. But while copyrights 
were granted, at least in some of the States, by general 
legislation, no patents were issued except bj^ special 
legislative acts. 1 

When application is made for a patent, a model of 
the article is required to be deposited in the Patent 
Office. There has gradually been gathered in this way 
a vast collection of models and specimens, making 
the Patent Office at Washington a place of resort to 



1 Curtis, II, p. 339. 



1. VIII. 8. PATENTS. 123 

most who visit the national Capital. In 1836 the build- 
ing in which these were contained was burned, and 
many of the models were destroyed ; but Congress made 
an appropriation of one hundred thousand dollars to 
procure duplicates of those which were the most valu- 
able. The present buildings extend over two entire 
blocks of the city of Washington. 

Patents may be granted for designs and trade-marks, 
as well as for machines. Designs may be patented for 
three years and six months, for seven years, or for 
fourteen years; and trade-marks may be patented for 
thirty years. 

The applicant for a patent must make oath that he 
believes himself to be the original inventor of that for 
which he seeks a patent; he must file a full description 
of the same, and. in all cases admitting it, must present 
drawings and a model. A prior patent in a foreign 
country does not debar him from receiving a patent 
here, provided the invention shall not have been intro- 
duced into public use in the United States for more 
than two }'ears prior to the application. 

If one has made a discovery or invention, but wishes 
to mature it, he may file a caveat, setting forth its char- 
acter, and praying for protection of his right until he 
can mature the invention. Should another apply with- 
in a year for a patent covering the same ground, notice 
is given to the first applicant, who must file his de- 
scription, etc., within three months. 

The fees in the Patent Office are, on filing the appli- 
cation for a patent, fifteen dollars; on issuing the pat- 
ent, twenty dollars ; on filing a caveat, ten dollars ; on 
application for extension of a patent, fifty dollars; on 
granting an extension, fifty dollars. The fees for pat- 
ents for designs are, for three years and a half, ten dol- 
lars ; for seven years, fifteen dollars : for fourteen years, 
thirty dollars. The fee for protection for a trade-mark 
is twenty-five dollars. The first law regulating' patents, 



124 THE CONSTITUTION. 1. VIII. 8. 

passed in 1790, made the fees very small — about four dol- 
lars. But in 1793 it was provided that every inventor 
should pay thirty dollars before presenting his petition. 

The receipts of the Patent Office are usually more 
than the expenditures, though there are exceptional 
years. Over 330.000 applications for patents have been 
filed since 1836, and about 219,000 patents have been 
granted. Comparing the years 1840 and 1877, we find 
a very remarkable increase. Thus in 1840 the applica- 
tions were 765, and in 1877 the number was 20,308; in 
1840, patents issued, 473; in 1877 the number was 
13,619; in 1840 the caveats filed were 228; in 1877 
they were 2,809; in 1840 the receipts and expenditures 
were, respectively, 838,056 and §39,020; in 1877 they 
were $732,342 and §613,152, the excess of the receipts 
over the expenditures being S119,190. 

The Commissioner of Patents makes an annual re- 
port, giving, among other things, a list and description 
of all patents granted, with the names of the patentees. 
Drawings of all the inventions are also published. 
These Patent Office Reports now form many volumes, 
and constitute a record of the industrial progress of the 
country. For a number of years prior to 1863, one vol- 
ume of the annual report was devoted to Agriculture ; 
but in 1862 a Department of Agriculture was estab- 
lished, with a Commissioner at the head of it; and an 
annual report on Agriculture is issued by this Commis- 
sioner. In 1871 the publication of the specifications 
and engravings was discontinued, in connection with 
the annual report of the Commissioner of Patents, and 
a weekly Gazette substituted. 

Patents are assignable, but the assignment must be 
recorded in the Patent Office. All patentees, and those 
making or selling patented articles under them, must 
cause the word " patented," with the date of the patent, 
to be affixed to each article, that the public may have 
notice of its character. 



1. VIII. 9. PIRACY. 125 

Clause 9. — To constitute tribunals inferior to the Su- 
preme Court. 

The Constitution itself provides for the Supreme 
Court (Art. Ill), but leaves to Congress the question 
of the inferior courts. Congress, at its first session, es- 
tablished two tribunals inferior to the Supreme Court, 
called the Circuit and District Courts; and these three 
still constitute the judiciary of the United States. In 
1855 the Court of Claims was established, which hears 
and determines claims on the government. All these 
will be considered under Article III. 

Clause 10. — To define and punish piracies and felonies 
committed on the high seas, and offenses against the law 
of nations. 

Piracy is robbery at sea. The common law recognizes 
and punishes it as an offense against the universal law 
of nations; a pirate being deemed an enemy of the hu- 
man race. The Continental Congress, in 1781, declared 
death to be the punishment for piracy. In 1790 an act 
was passed by Congress providing for the same punish- 
ment. In 1820 Congress passed an act which declared 
it to be piracy to land on a foreign shore and seize ne- 
groes or mulattoes, or decoy them on board vessels, with 
intent to make them slaves. 

At common law that was considered felony which oc- 
casioned the forfeiture of lands and goods, and for 
which the punishment of death might also be inflicted. 
Capital punishment does not necessarily enter into 
the definition of felony, yet the idea of felony is so 
generally connected with that of capital punishment 
that it is difficult to separate them. 1 

By high seas is meant, in general terms, the ocean, 
including the waters along the coast beyond low-water 
mark. 



1 Tiffany, p. 241. 



126 THE CONSTITUTION. 1. VIII. 11. 

A nation is responsible for its citizens, and must pun- 
ish them if they interfere with the rights of other na- 
tions ; otherwise there will be retaliation, and friendly- 
relations will be disturbed. The Constitution, there- 
fore, gives to. Congress authority to define and punish 
offenses against the law of nations. 

Clause 11. — To declare war, grant letters of marque 
and reprisal, and make rules concerning captures on land 
and water. 

The power to declare war belongs to the sovereignty 
of a nation. It is one of the highest acts which any 
government can perform, involving interests of the 
greatest importance, and affecting the property and 
lives of the people. In Great Britain the power to de- 
clare war is the exclusive prerogative of the Crown. 
Mr Pinckney proposed in the Convention that it 
should be in the Senate ; so Mr. Hamilton also ; Mr. 
Butler proposed that it should be in the President. 

In one of the two wars in which the United States 
has been engaged there was a formal declaration of 
war; in the other, war was recognized as already exist- 
ing. Thus, in 1812, it was enacted, "That war be and 
the same is hereby declared to exist between the United 
Kingdom of Great Britain and Ireland and the depend- 
encies thereof, and the United States of America and 
their territories." 1 And, in 1846, the preamble of the 
act of Congress says, "Whereas, by the act of the Re- 
public of Mexico, a state of war exists between that 
government and the United States." In 1798 Congress 
declared the United States to-be freed and exonerated 
from the stipulations of the treaties with France, be- 
cause that power had repeatedly violated the treaties 



1 The act is entitled " An Act declaring war between the United 
Kingdom of Great Britain, etc., and the United States of America 
and their territories." 



1. VIII. 11. THE POWER TO DECLARE WAR. 127 

and refused all reparation. A few days later an act 
was passed, authorizing the President to instruct the 
commanders of armed vessels to capture any French 
armed vessels. 

In the case of Great Britain only, was there a formal 
declaration of war by Congress. In the other cases a 
state of hostilities was recognized, making hostile meas- 
ures on our part necessary. The war of the Southern 
Rebellion was neither declared nor formally recognized, 
although hostilities commenced some months before 
Congress met. The rebellion as an existing fact is 
scarcely alluded to in any of the several acts passed 
at the special session convened in July, 1861. The 
language is hypothetical : " Whenever it shall, in the 
judgment of the President, by reason of unlawful com- 
binations of persons in opposition to the laws of the 
United States, become impracticable to execute the 
revenue laws," etc. " If two or more persons within 
any State or Territory shall combine together to over- 
throw the government of the United States," etc. There 
is an act to provide for the payment of the militia and 
volunteers called into the service of the United States, 
but against what enemy the act does not say. The most 
distinct recognition of the rebellion is in a section of 
an act to increase the military establishment of the 
United States. It is declared that this increase is " for 
service during the existing insurrection and rebellion." 
So in the preamble to an act for calling out the national 
forces, passed March 3d, 1863. 

The word marque signifies landmark or boundary, and 
letters of marque denote the commission issued to a 
private person, authorizing him to pass the frontier and 
take the persons or property of the subjects of another 
nation from which injury has been received. The word 
reprisal, meaning a retaking, indicates the purpose for 
which the commission is issued. A vessel bearing such 
letters is called a privateer. Without this authority 



128 THE CONSTITUTION. 1. VIII. 12. 

the seizing of men and goods would be piracy. The 
law of nations recognizes the right of one nation to 
take this mode of obtaining redress from another. 
Oftentimes letters of marque and reprisal are issued 
before a declaration of war. They may prevent a war, 
or they may occasion it. 

The rules concerning captures are not limited to those 
made beyond the nation's territory, but appty also to 
the property of enemies found within the territory. 
The Supreme Court has decided that these rules are 
an express grant to Congress of the power of confisca- 
ting enemy's property found within the territory at the 
declaration of war. 1 

Clause 12. — To raise and support armies, but no appro- 
priation of money to that use shall be for a longer term 
than two years. 

Under the Articles of Confederation, Congress could 
declare war, but they could not raise armies. They had 
power only "to agree upon the number of land forces, 
and to make requisitions from each State for its quota, 
in proportion to the number of white inhabitants of 
such State." 2 " The experience of the whole country, 
during the Revolutionary War, established, to the satis- 
faction of every statesman, the utter inadequacy and 
impropriety of this system of requisition. It was 
equally at war with economy, efficiency, and safety." 3 

This clause gives the power to raise and support a 
standing army, or "the military peace establishment 
of the United States," and the large armies necessary 
in times of war. Three times in our national history, 
since the war of the American Revolution, has it been 
necessary to call out large bodies of men : in the war 
with Great Britain in 1812, in that with Mexico in 



1 8 Cranch, p. 110. 2 Articles of Confederation, Art. IX. 

3 Judge Story. 



1. VI IT. 12. THE REGULAR ARMY. 129 

1846, and during the late rebellion. The number of men 
called into the service of the government in the war of 
the rebellion was vastly greater than in either of those 
preceding. There were over a million of men in the 
Army of the United States at the close of the rebellion. 

There was a small standing army at the time the 
Constitution was formed. The organization has been 
continued to this time. By act of Congress of July, 
1866, the regular army was to consist of five regiments 
of artillery, ten of cavalry, and forty-five of infantry. 
Of general officers there were one General, one Lieu- 
tenant-General, five Major-Generals, and ten Brigadier- 
Generals. The army has been largely reduced since 
1866. In 1871 it consisted of 30,000 men, and in 1874 
it was reduced to 25,000. It was also provided that no 
new appointments should be made of Major-Generals 
or of Brigadier-Generals till the number should be be- 
low three and six respectively ; and that then the num- 
ber of Major-Generals should not exceed three, or that 
of Brigadier-Generals exceed six. 

It was also provided that the offices of General and 
Lieutenant-General should cease with the present of- 
ficers. The office of Lieutenant-General was created in 
1798, and General Washington received the appoint- 
ment. The office of General was created in 1799, and 
abolished in 1802. In 1855, the office of Lieutenant- 
General was revived that it might be conferred by 
brevet on General Winfield Scott. In 1864 General 
Ulysses S. Grant was appointed Lieutenant-General, 
and became the highest military officer under the Pres- 
ident. The office of General was revived in 1866, and 
General Grant was appointed to the office. Major-Gen- 
eral William T. Sherman was then appointed Lieuten- 
ant-General. On the election of General Grant to the 
Presidency, Lieutenant-General Sherman was made Gen- 
eral, and Major-General Philip H. Sheridan Lieutenant- 
General. 



130 the ooNfirnrttn 1. vm. 1.3. 

The appropriation is limited to two rears, which is 
the Cengi -ional term. This gives the virtual control 
of the army to the people. 

Clause 13. — To provide and maintain a nary. 

There was no opposition in the Convention to giving 
agi — this power, but in some of the State Conven- 
tions much hostility was manifested. The Department 
of the Navy was not established till 1798; the general 
charge of the naval forces and the matters pertaining 
to naval affairs having been up to that time committed 
to the Department of War, which had been established 
in 1789. It wag not till the brilliant naval achieve- 
ments during the war with Great Britain that all 
jealousy disappeared, and the desire to make our navy 
equal to that of other nations was manifested by the 
whole nation. With such an immense sea-coast on both 
oceans, and with so great a commerce with all nations, 
the United States needs a strong naval force for the 
protection of our maritime intere-: 

The Navy Department has been, from its establish- 
ment in 1798, under the charge of a Secretary. In 
July. 1861. provision was made for an Assistant Secre- 
tary, but the office was abolished in March. 1869. 

By the report of the Secretary, in November, 1876, 
the Xavy consisted of 146 ships of all cla-se=. Exclu- 
sive of- howitzers and gatlinss. they carry 1142 guns. 
Of these vessels, 75 re in actual use. 

The number of persons authorized to be enlisted 
into the Xavy. including seamen, landsmen, and me- 
chanics, as also apprentices and boy=. is ~ven thou- 
sand five hundred. The Marine Corps, which consi — 
those who are trained to serve on land as well as on 
vessels of war, numbers twenty-five hundred pri 
with nearly seven hundred officers, including musi- 
cians. The highest officer of the Marines has the rank 
and pay of a Brigadier-General. 



I. VIII. 14. THE NAVY. 131 

The officers of the Navy are as follows, with their 
rank corresponding to that of officers of the Army: 

Navy. Army. 

Admiral. General. 

Vice- Admiral. Lieutenant-General. 

Rear- Admiral. Major-General. 

Commodore. Brigadier-General. 

Captain. Colonel. 

Commander. Lieutenant-Colonel. 

Lieutenant-Commander. Major. 

Lieutenant. Captain. 

Master. First Lieutenant. 

Ensign. Second Lieutenant. 

Until 1862, the office of Captain was the highest 
recognized by law. A Captain commanding two or 
more ships was called a Commodore by custom, and 
this title, when once applied to an officer, was usually 
continued. 1 In 1862 the offices of Rear- Admiral and 
Commodore were created, in 1864 that of Vice- Admiral, 
and in 1866 that of Admiral. By act of January 24th, 
1873, Congress provides that when the offices of Ad- 
miral and Vice- Admiral become vacant, the grades 
shall cease to exist. The present Admiral (1877) is 
David D. Porter; and the Vice- Admiral, Stephen C. 
Rowan. There are twelve Rear- Admirals and twenty- 
five Commodores. 

Clause 14. — To make rules for the government and 
regulation of the land and naval forces. 

The power to declare and carry on war involves that 
of providing armies and navies, and that of governing 
the forces thus raised. Rules for the government of 
these forces have been made by Cqngress in accord- 
ance with this clause. In 1806, 2 . an act was passed 



1 Grillet's Federal Government, p. 335. 2 April 10th. 



the coKsrmm i.vni.i<L 

establishing the Rules and Article* ::' '.' 7sa for the 
government of the Army. Every officer must subscribe 
these articles, in number a hundred and ti fight; 

are read to every recruit at the time of enlist- 
ment, and they are read and published every six months 
- - _ troop, or company. 

An act for the government of the first 

passed in 1" 9. 1 but it was repealed the next year and 
a new one passed.* The rules now in force were enacted 
in 1862. 3 For minor offenses the commanding officer 
may inflict such punishments as reprimand, suspen- 
sion from duty, arrest or confinement, neither of which 
-h.iLl ::i::i'.:r I: Hirer :1;.~ ::: cLiy?. es:- - : .. :~r:: ifr 
period be necessary to bring the offender to a Court 
7 _ Senses, both in the army and 

rial is held before a Court Martial, and such 
punishments may be inflicted as the Court may pro- 
noun to the taking of life. Fntil 185ty flog- 
one of the punishments inflicted in the navy, 
of the twenty-eighth of September of 
that yeai was abolished in the navy and on board 
inmeree. Flogging in the army was pro- 
hibited in 1812, but in 1833 an exception was made 
in the Base of desertion. In 1861.* however, it was 

Having thus two classes of Courts r civil and military, 
each of which is clothed with authority to sentence to 
the severest punishments, the country will be liable 
to a conflict of jurisdiction, especially in time of war. 

alike established by law. They owe their authority to 

the same source. The Court Martial has no power 

is given to it by Congress in accordance 

Constitution, and within its own jurisdiction 

its is legiti m us that of the civil Court. 



March 3d. z April 23d, 1800, 5 July 17th. 



1. VIII. 15. THE MILITIA. 133 

Clause 15.— To provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections, 
and repel invasions. 

Clause 16.— To provide for organizing, arming, and 
disciplining the militia, and for governing such part of 
them as may be employed in the service of the United 
States, reserving to the States respectively the appoint- 
ment of the officers, and the authority of training the 
militia according to the discipline prescribed by Congress. 

The militia arc distinguished from the regular army. 
They are the citizen soldiers of the country, liable to be 
called out in cases of emergency. These clauses virtu- 
ally give Congress the whole power in regard to the 
militia. In 1792 * an act was passed "to provide for 
the national defense by establishing a uniform militia 
throughout the United States." It provided for the en- 
rolling of "every free able-bodied white male citizen 
of the respective States" between the ages of eighteen 
and forty -five. The act of March 2d, 1867, provided 
for the enrolling of negroes by striking out the word 
" white " from the act of 1792. In 1863, 2 Congress en- 
acted that all citizens, and those who have declared 
their purpose to become such, between the ages of 
twenty and forty-five, shall constitute the national 
forces, and shall be liable to perform military duty in 
the service of the United States when called out by 
the President for that purpose. 

A law providing for calling forth the militia in 
accordance with Clause 15 was passed in 1792. 3 An 
amended act was passed in 1795, 4 which is still in 
force. This law authorized the President to call out 
the militia, for the purposes specified, as he might 
judge necessary. The militia, when in the service of 
the United States, were to be subject to the same 



May 8th. 2 March 3d. 3 May 2d. 4 February 28th. 



134 THE CONSTITUTION. 1. till. 16. 

articles of war as the regular troops, and their time 
of service could not exceed three months in any one 
year. In 1862 x this time was extended to nine months; 
and it was provided, if the militia had not been en- 
rolled in any State, that the President might make 
all necessary rules and regulations for doing it. 

The militia have been called out three times in the 
history of the country. The first was at the insurrec- 
tion in the western counties of Pennsylvania, known 
as the '"Whisky Rebellion." A portion of the inhab- 
itants had opposed the execution of the laws imposing 
duties on domestic spirits, and this opposition was at 
length carried so far as to render necessary the inter- 
position of force. On the seventh of August, 1794, the 
President issued a proclamation, commanding the in- 
surgents to disperse, and at the same time made requi- 
sitions on the governors of New Jersey, Pennsylvania, 
Maryland, and Virginia, for their quotas of twelve 
thousand men. The number was afterwards increased 
to fifteen thousand. On the twenty-fifth of September 
another proclamation was issued, declaring the neces- 
sity of putting the force in motion. By this energetic 
action of the President the insurrection was quelled 
without bloodshed. 2 In his next message to Congress 
the President recommended a revision of the militia 
law, which was made in 1795. 

The militia were again called out in 1812, in the war 
with Great Britain. In this case it Avas to "repel 
invasions." 

Though the President was authorized, by act of 
Congress May 13th, 1846, to emplo}' the militia, as well 
as the naval and military forces, and to accept the serv- 
ices of volunteers, in the prosecution of the war with 



Uuly 17th. 

2 Marshall's Life of Washington, Vol. V, Chap, viii ; Pitkin's 
Pol. and Civil Hist, of the U. S., Vol. II, Chap, xxiii. 



1. VIII. 17. THE DISTRICT OF COLUMBIA. 135 

Mexico, the militia were not called out. The troops 
furnished by the several States were all volunteers. 

The third instance in which the militia were called 
out was in the war of the rebellion in 1861. The first 
call was by proclamation of President Lincoln on the 
fifteenth of April, 1861, for "the militia of the several 
States of the Union to the aggregate number of seventy- 
five thousand, in order to suppress said combinations, 
and to cause the laws to be duly executed." The Pres- 
ident, by order dated August 4th, 1862, called for a 
draft of 300,000 militia to serve for nine months. And 
again June 15th, 1863, he called for 100,000 militia from 
the States of Maryland, Pennsylvania, Ohio, and West 
Virginia, to serve six months. Thus in the late civil 
war there were three calls for the militia as such, to the 
number of 475,000 men. This was but a small part of 
the number in the service, the others being called for 
as volunteers. The whole number mustered into the 
service of the United States in the four years from 
April, 1861, was 2,656,55s. 1 

Clause 17. — To exercise exclusive legislation in all cases 
whatsoever, over such district (not exceeding ten miles 
square) as may, by cession of particular States, and the 
acceptance of Congress, become the seat of the government 
of the United States, and to exercise like authority over 
all places purchased, by the consent of the legislature of 
the State in ivhieh the same shall be, for the erection of 
forts, magazines, arsenals, dock- yards, and other needful 
buildings. 

The district for the government of which provision 
is here made was ceded to the United States bj^ Mary- 
land and Virginia, and accepted by Congress July 16th, 
1790. Maryland made the cession of that part lying 
east of the Potomac in December, 1788, and Virginia 



Report of Secretary of War, Nov., 1866. 



136 THE CONSTITUTION. 1. VIII. 17. 

the part west of the Potomac in December. 17S9. The 
act of Congress accepting the cession provides "that a 
district of territory not exceeding ten miles square, to 
be located on the river Potomac, at some place between 
the mouths of the Eastern Branch and Connogochegue, 
be. and the same is hereby accepted, for the permanent 
:>i government of the United States." The precise 
Location was to be determined under the direction of 
the President by commissioners to be appointed by him. 

The act further provided that prior to the first Mon- 
day of December of that year — 1790— all the govern- 
ment offices should be removed to Philadelphia from 
Xew York, where Congress was then in session, and 
should remain there until the first Monday of Decem- 
ber. 1S00, when they were to be removed to the per- 
manent seat of government. The Continental Congress 
held their sessions in Xew York from January. 1785, 
till the Constitution was adopted, and the first Congress 
under the Constitution held the first two of its three 
sessions there. Thus the seat of government was at 
New York from March 4th. 17S9. till the close of the 
second session of the first Congress, then at Philadel- 
phia for ten years, and has been at 'Washington since 
ml :. 1^00. 

The original District of Columbia was ten miles 
square, its boundary lines running X. E.. S. E.. S. W., 
and X. W. It was divided into two counties. Wash- 
ington east : the Potomac, and Alexandria west. In 
July. 1846, the latter was retroceded to Virginia. 

The necessity of exclusive power on the part of Con- 
gress at the seat of government is abundantly manifest. 
out it, the officers of the government might be 
interrupted in their duties, the public archives and 
other property injured, and Congress itself insulted. 
When the Continental Congress was in session at 
Philadelphia, the building where they were in 
was surrounded by some mutinous soldiers, clamoring 



1. VIII. 17. THE DISTRICT OF COLUMBIA. 137 

for their pay. The executive government of that State 
not giving to Congress adequate protection, that body 
immediately adjourned to Princeton, N. J. 

No less necessary is it that the general government 
should have exclusive control of the places where forts, 
arsenals, etc., are erected. 

The district in which the seat of government is lo- 
cated is obtained by cession from the State. The other 
places mentioned in the clause are purchased with the 
consent of the legislature of the State where they are 
located. In whichever manner acquired, the districts 
are under the exclusive control of Congress. They hold 
to the government the fame relation as the territories 
do. There is no transfer of political power from the 
State to the general government. The latter does not 
exercise legislation by virtue of any authority derived 
from the States, but by virtue of the general powers 
granted by the Constitution. It was claimed, in a case 
before the Supreme Court, that Congress, when acting 
under this clause, must be considered as a mere local 
legislature, and not as administering the supreme law 
of the land. "But the Supreme Court held directly the 
contrary — that the power belonged to 'Congress as the 
legislature of the Union; for strip them of that charac- 
ter, and they would not possess it. In no other charac- 
ter can it be exercised. * * * Congress is not a 
local legislature, but exercises this particular power, 
like all its other powers, in its high character, as the 
legislature of the Union.' " * 

"The efficiency of the government is all derived 
from the Constitution, and is equal in all places with- 
in its jurisdiction. It is supreme every-where. It is 
inclusive of all subordinate governments, where there 
are any, and exclusive where there are none. It is 
permanently exclusive, if there can be no other. It is 



•Farrar, p. 360; o When ton, p. 317. 
C. G. 12. 



138 THE CONSTITUTION. 1. VIII. 17, 

temporarily exclusive, till a subordinate is instituted. 
It becomes exclusive again, if a subordinate is extinct, 
whether by right or by wrong; and it remains exclusive, 
when it is so, till a subordinate is rightfully restored.'' 1 

As direct taxes are by Article I, Section 2, Clause 3, 
to be apportioned among the several States according 
to their respective numbers, it might be thought that 
the inhabitants of the District of Columbia would be 
exempt. But the Supreme Court has decided that Con- 
gress has the power to levy a direct tax on the District 
of Columbia, and also upon the territories. Congress 
is not bound to do it, but the power is possessed, quali- 
fied in the same manner as in regard to the States; i.e., 
the tax must be in proportion to the population. A 
direct tax was levied upon the States in January. 1815. 
In February of the same year a tax was levied on the 
District of * Columbia. The direct tax of 820,000,000 
a year, according to act of August, 1861, included 
the District of Columbia, and all the territories then 
existing. 

In the cessions to Congress under this clause, there 
has generally been a reservation of the right to serve 
State process, civil and criminal, upon persons found 
therein. Thus these places can not be made sanctuaries 
for fugitives. 

On the sixteenth of April, 1862. slavery was abolished 
in the District of Columbia by act of Congress. At the 
same session of Congress (the second of the Thirty- 
seventh Congress), an act was passed declaring that 
there should be neither slavery nor involuntary servi- 
tude in any of the territories then existing, or which 
should be formed thereafter. In the District of Colum- 
bia provision was made to remunerate loyal owners for 
the slaves thus set free, not exceeding S300 each in the 
aggregate. 



1 Farrar, p. 363. 



1. VIII. 18. THE DISTRICT OF COLUMBIA. 139 

In 1871 a territorial government was established for 
the District. It provided for a Governor, Secretary, 
Council (upper legislative house), Board of Health, and 
Board of Public Works, to be appointed by the Presi- 
dent and Senate. There was a House of Delegates to 
be elected by the people. In 1874 the act was repealed, 
and until a new system could be framed, the govern- 
ment was entrusted to three Commissioners, to be ap- 
pointed by the President and Senate. 

In 1878 a new act was passed placing the government 
under a Board of three Commissioners; two to be ap- 
pointed by the President and Senate for three years; 
and the third, an officer of the Corps of Engineers of 
the army, to be detailed by the President. These Com- 
missioners have general charge of the municipal inter- 
ests of the District, appointing the police, firemen, 
school trustees, and all other officers. They submit 
each year to the Secretary of the Treasury a detailed 
estimate of expenses, which on his approval, is trans- 
mitted to Congress. If Congress approves the estimate, 
one-half the amount is appropriated from the general 
treasury, and the other half is assessed upon the taxa- 
ble propertj^ of the District. 

Clause 18. — To make all larvs which shall be neces- 
sary and proper for carrying into execution the foregoing 
poivers, and all other p>oicers vested by this Constitution in 
the government of the United States, or in any department 
or officer thereof. 

This, in substance, was in Mr. Pinckney's plan. The 
Committee of Detail reported it as it is now, and so 
did the Committee of Revision. There was no opposi- 
tion or discussion in the Convention, but great oppo- 
sition was made in the State Conventions. Patrick 
Henry often speaks of it as "the sweeping clause," by 
which Congress was to overthrow the States. Those 



1^0 THE CONSTITUTION. 1. VIII. 18. 

opposed to the Constitution assailed it with great 
vehemence, and endeavored, through the prejudice ex- 
cited, to prevent the Conventions of the States from 
ratifying the Constitution. Mr. Randolph's plan in 
relation to the powers of Congress was that '"The Na- 
tional legislature ought to be empowered to enjoy the 
legislative rights vested in Congress by the Confedera- 
tion; and moreover .to legislate in all cases to which 
the separate States are incompetent, or in which the 
harmony of the United States may be interrupted by 
the exercise of individual legislation; to negative all 
laws passed by the several States contravening, in the 
opinion of the National legislature, the Articles of 
Union, or any treaty subsisting under the authority of 
the Union." This was agreed to in Committee of the 
Whole. 1 The clause as to the power of Congress to 
veto State laws was lost in the Convention, five States 
voting for it, and six against it. Mr. Madison ear- 
nestly supported it. 

Writers on Constitutional Law agree that Congress 
would have had ample authority to make all laws 
necessary and proper for carrying into execution the 
powers vested in the general government by the Con- 
stitution, even if this clause had not been inserted. 
If the Constitution provides for a government, and in- 
vests it with powers, it follows as an unavoidable in- 
ference that the legislative department of that govern- 
ment can make the laws needful for carrying those 
powers into execution. Mr. Madison says, 2 " Few parts 
of the Constitution have been assailed with more in- 
temperance than this ; yet, on a fair investigation of 
- has been elsewhere shown, no part can appear 
more completely invulnerable. Without the substance 
of this power, the whole Constitution would be a dead 
letter." He proceeds to show the folly of attempting 



1 Elliot, Y, p. 190. federalist, No. 44. 



1. VIII. 18. IMPLIED POWERS. 141 

a positive enumeration of the powers necessary and 
proper for carrying their other powers into effect; that 
u the attempt would have involved a complete digest 
of laws on every subject to which the Constitution re- 
lates ; accommodated, too, not only to the existing 
state of things, but to all the possible changes which 
futurity might produce." No less chimerical would it 
be to enumerate the powers or means not necessary or 
proper for carrying the general powers into execution. 

"Had the Constitution been silent on this head, there 
can be no doubt that all the particular powers requisite 
as means of executing the general powers would have 
resulted to the government by unavoidable implication. 
No axiom is more clearly established in law, or in 
reason, that whenever the end is required, the means 
are authorized. Wherever a general power to do a 
thing is given, every particular power necessary for 
doing it is included." Thus Mr. Madison. 

Mr. Hamilton uses similar language. 1 " It may be 
affirmed with perfect confidence that the constitutional 
operation of the government would be precisely the 
same if these clauses were entirely obliterated, as if 
they were repeated in every article. They are only 
declaratory of a truth which would have resulted by 
necessaiy and unavoidable implication from the very 
act of constituting a federal government and vesting it 
with certain specified powers." 

Chief Justice. Marshall says: rt A power vested carries 
with it all those incidental powers which are necessary 
to its complete and efficient execution." This principle 
has been repeatedly sanctioned by the Supreme Court, 
and has been acted on by the general government from 
1789 to the present day. 

Judge Story says : " It would be almost impractic- 
able if it were not useless, to enumerate the various 



federalist, No. 33. 



142 THE CONSTITUTION. 1. VIII. 18. 

instances in which Congress, in the progress of the 
government, have made nse of incidental and implied 
means to execute its powers. They are almost infinitely 
varied in their ramifications and details."" 

Nothing is plainer than that the Constitution was 
intended to vest in the general government all the 
powers which properly belong to such a government, 
and so it has been understood from the beginning. 
The affairs of the nation could not be carried on a 
single year if no laws were enacted but such as are 
specifically provided for in the Constitution. The very 
language of the Constitution in divers places presup- 
poses that Congress could make laws for which no spe- 
cific authority is given. Thus, in Art. I, Sec . it is 
provided that the importation of slaves should not be 
prohibited till 1808; yet nowhere does the Constitution 
invest them with any authority to prohibit it then. 

In the same seoiion it is declared that, "The privi- 
leges of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the pub- 
lic safety may require it."' But where has the Consti- 
tution conferred upon Congress, or any department of 
the government, any distinct power to suspend this 
writ? 

So also. "Xo bill of attainder or ex post facto law shall 
be passed."' Such laws were passed by the British 
Parliament, and were not unknown in the legislation 
of the American States. Without this restriction, it- 
was evidently supposed by the framers of the Consti- 
tution that Congress might do the same, although there 
is no clause granting such authority. 

The same may be said in regard to granting titles 
of nobility, and requiring religious tests. The clauses 
prohibiting government from these acts are manifestly 
limitations upon its powers: without the limitations, 
it would have had ample authority in both cases. 
The First Amendment is of the same nature. Where 



1. VIII. 18. IMPLIED POWERS. 143 

does the Constitution intimate any power in either 
department of the government to establish religion, or 
prohibit the freedom of speech or of the press? 

It is a favorite form of speech with many that the 
general government is one of enumerated powers, and 
especially is this said of the legislative department. 
''The powers specifically granted to Congress are what 
are called 'the enumerated pow T ers,' and are numbered 
in the order in which they stand," says one of the 
Presidents in his message. Says another in a veto 
message, "The legislative pow r ers vested in Congress 
are specified and enumerated in the 8th sec. of the 
first Article of the Constitution.'' 

We have- seen that the restrictions expressly placed 
upon Congress by the Constitution presuppose, in the 
absence of such restrictions, the existence of plenary 
powers to legislate for the general welfare. On any 
other supposition these prohibitions are entirely devoid 
of meaning. From the time of Washington's adminis- 
tration to the present day the government, in all its 
departments, has been carried on as a national gov- 
ernment with full powers of sovereignty. Opposition 
to certain measures has often been based upon their 
alleged unconstitutionality; but when the political 
party from which the opposition came has itself been 
placed in power, it has not hesitated to deviate quite 
as far from the strict letter of the Constitution. 

Among the acts w 7 hich are indefensible on the theory 
of specially enumerated powers, and which can be sus- 
tained only on the general doctrine of national sover- 
eignty, may be mentioned the purchase of Louisiana; 
the embargo act of 1807 ; the claim of the general gov- 
ernment to. be preferred as creditor not only to private 
citizens, but even to the State authorities; grants of 
lands for railroads and canals ; the annexation of Texas ; 
grants of lands for Agricultural Colleges; the estab- 
lishment of a Department of Education ; etc. 



144 THE CONSTITUTION. 1. IX. 1. 

" The most remarkable powers," says Judge Story, 
" which have been exercised by the government, as 
auxiliary and implied powers, and which, if any, go 
to the utmost verge of liberal construction, are the 
laying of an unlimited embargo in 1807, and the 
purchase of Louisiana in 1803, and its subsequent ad- 
mission into the Union as a State. These measures 
were brought forward, and supported, and carried by 
the known and avowed friends of a strict construction.'' 
" The friends of the latter measure were driven to the 
adoption of the doctrine that the right to acquire ter- 
ritory was incident to national sovereignty ; that it was 
a resulting power, growing out of the aggregate powers 
confided by the Constitution; that the appropriation 
might justly be vindicated upon the ground that it 
was for the common defense and general welfare.*' 

The people of the United States have ordained and 
established the Constitution for the purpose of provid- 
ing for the common defense, and promoting the gen- 
eral welfare: and whatever legislation is necessary and 
proper to secure these ends is clearly within the au- 
thority of Congress, except in those particulars which 
the Constitution has expressly restricted. Upon this 
theory the government has been administered from the 
beginning. This has been the practice of every ad- 
ministration, whatever may have been its theory. 

Sec. 9, Clause 1. — The migration or importation of 
such persons as any of the States now existing shall think 
proper to admit, shall not be jirohibited by the Congress 
prior to the year one thousand eight hundred and eight, 
but a tax or duty may be imposed on such importation, 
not exceeding ten dollars for each pjerson. 

The " persons " here mentioned were slaves. The 
clause permitted the slave-trade till 1808. As reported 
by the Committee of Detail, the provision was that 
such importation should not be prohibited ; there was 



1. IX. 1. SLAVERY AND THE SLAVE-TRADE. 145 

no limitation of time. It was provided also in that re- 
port that no tax or duty should be levied. The tax of 
ten dollars which the Convention finally decided upon 
was in fact never imposed by Congress. At the expira- 
tion of the twenty years the further importation of 
slaves was prohibited by an act passed March 2d, 
1807, to take effect January 1st, 1808. 

When the Constitution was formed, no nation had 
abolished the slave-trade. 1 Yet of the thirteen Ameri- 
can States all but three had prohibited the importa- 
tion of slaves. These three were North Carolina, South 
Carolina, and Georgia; and they insisted upon a pro- 
vision in the Constitution for the admission of slaves, 
at least for a limited period. Hence the clause as it 
appears. 

The following is a summary of the action of our gov- 
ernment touching slavery and the slave-trade : 

In 1787 2 the Continental Congress passed an "Ordi- 
nance for the government of the Territory of the 
United States north-west of the. river Ohio," which 
provided that in the Territory there should " be neither 
slavery nor involuntary servitude, otherwise than in 
punishment of crimes." 

The slave-trade to foreign countries was prohibited 
in 1794. 3 

The importation of slaves was prohibited in 1807, 4 
the law to take effect January 1st, 1808. 

In 1820 5 the slave-trade was declared to be piracy, 
to be punished with death. 

Slavery was abolished in the District of Columbia 
by act of Congress in 1862, 6 and in the Territories the 
same year. 7 

The President's first proclamation as to emancipation 



1 Great Britain abolished it March 25th, 1807. 

2 July 13th. 3 March 22d. 4 March 2d. 5 May 15th. 
5 April 16th. 7 June 19th. 

C. G. 13. 



146 THE CONSTITUTION. 1. IX. 2. 

of slaves in the rebel States was issued September 22d, 
1862. The second proclamation, emancipating them, is 
dated January 1st, 1863. The coastwise slave-trade was 
forever prohibited by act of July 2d, 1864. 

The Thirteenth Amendment to the Constitution, 
abolishing slavery throughout the United States and 
all places subject to their jurisdiction, was proposed to 
the legislatures of the States by Congress, February 1st, 
1865, and was ratified December 18th, 1865. 

Clause 2. — The privilege of the writ of habeas corpus 
shall not be suspended, unless when in cases of rebellion 
or invasion the public safety may requwe it. 

A writ is a legal instrument or writing issued by a 
competent authority, commanding the performance or 
non-performance of some act by the person to whom 
it is directed. These writs were formerly written in 
Latin, and they are often designated by some impor- 
tant Latin words contained in them. The words habeas 
corpus mean " you may have the body ; " and the writ 
is issued by the judge having competent authority 
commanding the officer to bring the person held in 
confinement before the judge, that he may inquire in- 
to the cause of his imprisonment. The object is to 
prevent any illegal imprisonment or detention; and it 
is regarded as one of the great bulwarks of personal 
liberty. The writ may be granted upon the applica- 
tion of the person himself who is restrained of his 
liberty, or on the application of another person in his 
behalf. If, upon judicial inquiry, he is found to be 
imprisoned or confined for sufficient cause, he is still 
held in confinement; but if it appears that he has 
been arrested illegally, he is set at liberty. 

Such writs are issued not only to release from con- 
finement those who are unlawfully imprisoned, but 
to enable parents to get control of their children 
when held in custody by others, and to set at liberty 



1. IX. 2. THE WRIT OF HABEAS CORPUS. 147 

sane persons who may be confined under pretense of 
insanity. 

The. application must be accompanied with an affi- 
davit that the detention is contrary to law, and set- 
ting forth the facts in the case. "Though the writ of 
habeas corpus is a writ of right, it is not a writ of course ; 
and the judge is not bound to grant it except for 
cause shown." 

From the application itself it may be evident to the 
judge that the arrest was legal; in which case the writ 
of habeas corpus will not be issued. 

The Constitution does not determine by whom the 
privilege of the writ of habeas corpus may be suspended, 
whether by Congress, or the President, or both. The 
more common opinion has been that the power be- 
longs to Congress and not to the President. In 1807, 
a bill for the suspension of the writ was lost in the 
House of Representatives after having passed the Sen- 



ate. The first act passed by Congress to suspend the 
writ was in March, 1863. It had, however, been pre- 
viously suspended by President Lincoln (April 27th, 
1861) in an order to Lieutenant-General Scott. This 
had reference to the military line between Philadel- 
phia and Washington. The President, also, by procla- 
mation, authorized the commander of the forces on the 
Florida coast to suspend it on the islands near the 
coast. This proclamation was dated May 10th, 1861. 
This action of the President was in accordance with 
the opinion of the Attorney-General, who is his le- 
gal adviser. Attorney-General Bates says; "If by the 
phrase, the suspension of the writ of habeas corpus, we 
must understand a repeal of all power to issue the 
writ, then I freely admit that none but Congress can 
do it. But if we are at liberty to understand the 
phrase to mean, that in case of a great and dangerous 
rebellion like the present, the public safety requires 
the arrest and confinement of persons implicated in 



148 THE CONSTITUTION. 1. IX. 2. 

that rebellion, I as freely declare the opinion that the 
President has lawful power to suspend the privilege of 
persons arrested under such circumstances; for he is 
specially charged by the Constitution with the ' public 
safety,' and he is the sole judge of the emergency 
which requires his prompt action." 

Most of those who believe that the Constitution 
gives to Congress the power to suspend the writ, would 
admit that in cases of exigency the President might 
exercise the power without the authority of Congress. 
Thus Mr. Mulford says : " Since the legislature can not 
always act with the immediate energy which may be 
demanded, and does not act continuously, in its su- 
preme necessity, in the actual or in the imminent 
peril of the nation, it becomes not only the office but 
the imperative duty of the executive to assert it." 1 

In the act of Congress passed March 3d, 1863, the 
President was authorized to suspend the privilege of 
the writ in any case throughout the United States, 
whenever in his judgment the public safety should 
require it. The same act contained a clause of indem- 
nity to the President and those acting under his orders 
for any arrest or imprisonment during the existence 
of the rebellion. The suspension of the writ of habeas 
corpus in the recent rebellion was, therefore, by the 
authority of both the legislative and executive depart- 
ments of the government. 

The suspension of the writ does not make it unlaw- 
ful for the judge to issue the writ ;. but the writ hav- 
ing been issued, it is a sufficient return, or answer, to 
it to say, that the privilege of the writ had been sus- 
pended. 

Though the writ of habeas corpus had never been sus- 
pended, either by the Congress or the President, until 
the late rebellion, it appears to have been suspended 



1 The Nation, p. 188. 



1. IX. 3. BILL OP ATTAINDER. 149 

by military officers. " During the administration of 
President Washington, in the Pennsylvania 'Whisky 
Insurrection' of 1794 and 1795, the military authori- 
ties engaged in suppressing it disregarded the writs 
which were issued by the courts for the release of the 
prisoners who had been captured as insurgents. Gen- 
eral Wilkinson, under the authority of President Jef- 
ferson, during the Burr Conspiracy of 1806, suspended 
the privilege of this writ, as against the Superior 
Court of New Orleans. General Jackson assumed the 
right to refuse obedience to the writ of habeas corpus 
first in New Orleans, in 1814, as against the authority 
of Judge Hall, when the British army was approach- 
ing that city; and afterward, in Florida, as against 
the authority of Judge Fromentin." 1 

Clause 3. — No bill of attainder or ex post facto law 
shall be passed. 

A bill of attainder is a legislative act inflicting 
death or other punishment without a judicial trial. 
If the punishment is less than death, the act is now 
called in England a bill of pains and penalties. The 
legislature in passing such a bill assumes the functions 
of the judicial department of the government; it pro- 
nounces sentences and inflicts punishments not deter- 
mined by previous law; and it ordinarily gives the 
person accused no opportunity of defending himself. 
"Such was the bill of attainder in England, and such 
was it in this country at the time of the adoption of 
the Constitution. By that the whole subject was abol- 
ished and prohibited entirely and forever." 2 

An ex post facto law is one which makes an act 
criminal which was not criminal when committed. 



1 Halleck's International Law and Laws of War, quoted by Hon. 
A. F. Perry. 
2 Farrar, p. 420. 



150 THE CONSTITUTION. 1. IX. 4. 

So a law would be ex post facto that inflicts a greater 
punishment than the law imposed when the crime 
was committed. The phrase applies only to penal 
and criminal laws, and not to civil proceedings which 
affect private interests retrospectively. A law abolish- 
ing imprisonment for debt would not be an ex post facto 
law, though it should apply to past contracts; nor 
would a law rectifying some error, as making deeds 
of land valid, which were void through some defect. 

In the case ex parte Garland, the majority of the 
Supreme Court held that the law of January 24th, 
1865, which required a prescribed oath of every attor- 
ney before he could practice at the bar of a United 
States Court, was in violation of this clause, and 
therefore unconstitutional. Judges Chase, Davis, Miller, 
and Swayne dissented; in their judgment the act of 
Congress referred to was neither a bill of attainder 
nor an ex post facto law. 

Clause 4. — No capitation or other direct tax shall be 
laid, unless in proportion to the census or enumeration 
hereinbefore directed to be taken. 

A capitation tax is a poll tax. The tax is levied 
not according to property, but by the head. By Ar- 
ticle I, Section 2, the Constitution provided that direct 
taxes should be divided among the States according 
to the population; and in estimating the population, 
only three-fifths of the slaves should be counted. This 
clause would therefore exempt two-fifths of the slaves 
from every poll tax levied by the general government. 
It was to secure this exemption, and to prevent the 
levying of any special tax on" slaves, that the clause 
was inserted. No capitation tax has ever been levied 
by the United States. In some of the States it is 
forbidden by their Constitutions. The direct tax of 
1798 was assessed upon dwelling-houses, lands, and 
slaves — upon each slave fifty cents. This was not a 



1. IX. 5. EXPORT DUTIES PROHIBITED. 151 

capitation tax, though in the States where slaves were 
held, a part of the tax was levied upon the capitation 
principle, so far as the slaves were concerned. 

Clause 5. — iVb tax or duty shall be laid on articles 
exported from any State. No preference shall be given 
by any regulation of commerce or revenue to the ports 
of one Stcde over those of another ; nor shall vessels bound 
to or from one State be obliged to enter, clear, or pay 
duties in another. 

That part of this clause which relates to the taxing 
of exports was reported by the Committee of Detail in 
connection with the clause relating to the importation 
of slaves. There was strong opposition in the Conven- 
tion to giving up the right to tax exports. Several 
of the most influential members, Washington, Madi- 
son, Wilson, Morris, and others, were in favor of allow- 
ing Congress to tax exports as well as imports, regard- 
ing the power as essential to a general government. 

This prohibition has been generally understood as 
including all exports, though there has been no ju- 
dicial decision upon the subject. The opinion is held 
by some that the intention was to prevent any dis- 
crimination against a particular State, and that Con- 
gress is not prohibited from levying an export duty 
on articles exported from a number of States. 1 

The Constitution of the Confederate States contained 
no such clause of prohibition, and heavy. export duties 
were levied upon cotton. 

To "enter" a port is to report the ship with the car- 
go to the proper officer, and obtain permission to land 
the cargo. To ''clear*' is to obtain from the proper 
authorities the necessary papers for sailing from the 
port. While we were colonies under Great Britain, no 



Xorth American Review, July, 1865. 



152 THE CONSTITUTION. 1. IX. 6, 

American ship could trade with any port in Europe 
unless it first entered and cleared from a British port. 
But now a vessel can take her cargo from New York, or 
Boston, or New Orleans, directly to any European port. 
So a vessel can go from any one American port to any 
other. This latter constitutes the coasting trade, which 
is vastly greater in amount than the foreign trade. 

A former clause (Sec. 8, Clause 1) requires all duties, 
imposts, and excises to be uniform throughout the 
United States. This clause, providing that no prefer- 
ence should be given to one State over another in any 
commercial regulation, is of the same character. The 
different States were to be treated with absolute im- 
partiality and equal justice by the general government. 

Clause 6. — Xo money shall be drawn from the treasury, 
but in consequence of appropriations made by law ; and 
a regular statement and account of the recei/jts and expen- 
ditures of cdl public money shcdl be published from time 
to time. 

The propriety of this clause is obvious. It is a lim- 
itation on the Executive Department, and not on the 
Legislative. The appropriations are voted annually, 
the fiscal year ending on the thirtieth of June. These 
appropriations are made for the different departments 
of the government with much detail, and the duties 
devolving on the Committee on Appropriations are very 
arduous and responsible. The acts making appropria- 
tions for the year ending June 30th, 1872, fill ninety- 
eight pages of the United States Statutes at Large. To 
show the minuteness of these appropriations, there are 
fifteen different specifications under the head of "Li- 
brary of Congress." 

The account of the receipts and expenditures is 
annually reported to Congress by the Secretary of the 
Treasury. These reports form an important part of the 
executive documents of the government. 



1. ix. 7. TITLES OF NOBILITY. 153 

Clause 7. — iVb title of nobility shall be granted by the 
United States; and no person holding any office of profit 
or trust under them, shall, without the consent of the Con- 
gress, accept of any present, emolument, office, or title, of 
any kind whatever, from any king, prince, or foreign state. 

"Nothing need be said to illustrate the importance 
of the prohibition of titles of nobility. This may truly 
be denominated the corner-stone of republican govern- 
ment ; for so long as they are excluded there can never 
be serious danger that the government will be any 
other than that of the people." 1 

The second clause is to prevent any officer of the 
government from being influenced by a gift of any 
kind from any foreign prince or state. History shows 
abundant instances of the bribing by one government 
of the officials of another. When presents have been 
sent to officers of our government by a foreign power, 
they have become the property of the government, or 
Congress has authorized those to whom they were sent 
to receive them. 

At the second session of the Eleventh Congress, an 
amendment to the Constitution was proposed, two-thirds 
of both houses concurring, extending this prohibition to 
private citizens. " If any citizen of the United States 
shall accept, claim, receive or retain any title of nobility 
or honor, or shall, without the consent of Congress, ac- 
cept and retain any present, pension, office, or emolu- 
ment of any kind whatever, from any emperor, king, 
prince, or foreign power, such person shall cease to be 
a citizen of the United States, and shall be incapable 
of holding any office of trust or profit under them, or 
either of them." 2 But this proposed amendment has 
never been ratified by the requisite number of States. 



1 Hamilton, Federalist, No. 84. 

2 U. S. Statutes at Large, II, p. 613. 



154 THE CONSTITUTION. 1. X. 1. 

Sec. 10, Clause 1. — No State shall enter into any treaty, 
alliance, or confederation; grant letters of marque and 
reprisal; coin money; emit bills of credit; make any 
thing but gold and silver coin a tender in payment of 
debts; pass any bill of attainder, ex post facto hvc. or 
law impairing the obligation of contracts, or grant any 
title of nobility. 

This section contains prohibitions and restrictions 
on the power of the States. The Constitution is the 
expression of the will of the nation; that is, of the 
people of the whole country. To the nation belongs 
the sovereign power. In the Constitution the nation 
has declared that the general government shall exer- 
cise all the powers of national sovereignty, and that 
the States shall have authority in matters of local and 
municipal government. Powers pertaining to national 
sovereignty are expressly denied to the States in this 
tenth section. Nearly all these prohibitions are found 
also in the Articles of Confederation, and some of them 
are expressed there in terms stronger than in the 
Constitution. 

We find, indeed, in those Articles the clause. "Each 
State retains its sovereignty, etc., r but the words are 
without meaning, as the Articles themselves make 
the general government sovereign, and not the States. 
Though we often hear the States spoken of as sover- 
eign, they have never been so in fact. They were Col- 
onies till the fourth of July, 1776. and then the 
United Colonies became a nation, and each Colony be- 
came a State. From that day to this the individual 
States have exercised none of the powers of sovereignty. 
It is not unfrequently said that the States parted with 
their sovereignty when the Constitution was formed; 
implying that till then they possessed sovereign powers. 
But they could not part with what they never pos- 
sessed. The question is one of fact, and not one of 



1. X. 1. PROHIBITIONS ON THE STATES. 155 

theory. The Continental Congress exercised the powers 
of national sovereignty from the day of the Declara- 
tion of Independence till the present Constitution went 
into operation. In the language of Mr. Jay, afterward 
Chief Justice of the Supreme Court, "To all general 
purposes, we have uniformly been one people; each 
individual citizen every-where enjoying the same na- 
tional rights, privileges, and protection. As a nation, 
we have made peace and war; as a nation, we have 
vanquished our common enemies ; as a nation, we have 
formed alliances, and made treaties, and entered into 
various compacts and conventions with foreign states. " x 

The Articles of Confederation prohibited the States 
from "sending any embassy to, or receiving any em- 
bassy from, or entering into any conference, agreement, 
alliance, or treaty, with any king, prince, or state," 
without the consent of the United States. In the Con- 
stitution the prohibition is absolute. Were each State 
to have the power to form alliances with foreign na- 
tions, it would be impossible to preserve the peace and 
harmony of the several parts of the Republic. The 
Union would soon be dissolved, and the nation split 
into fragments. Could the States grant letters of marque, 
it would be in the power of any one to involve the 
rest in war. All these powers, being incident to na- 
tional sovereignty, are thus wisely and necessarily 
prohibited to the States. 

The Articles of Confederation allowed the States to 
coin money, but gave to Congress the exclusive right 
to regulate the alloy and value of the coin. The power 
of the States in regard to money was thus a qualified 
power. But the provision of the Constitution, prohib- 
iting the States absolutely from coining money, is a 
manifest improvement on the previous system. 

The States are also prohibited from emitting bills 



Federalist, No. 2. 



156 THE CONSTITUTION. K X. 1. 

of credit. "To constitute a bill of credit, within the 
Constitution, it must be issued by a State, involve the 
faith of the State, and be designed to circulate as 
money, on the credit of the State, in the ordinary uses 
of business.'' Such bills may or may not bear in- 
terest ; they may or may not be made a legal tender. 
Neither of these circumstances would affect them as 
bills of credit. The State of Missouri issued loan cer- 
tificates, bearing interest and redeemable by the State, 
which were made receivable for taxes and debts, and 
by public officers in payment of their salaries. But 
the Supreme Court decided that they were bills of 
credit, and therefore unconstitutional. A State may 
borrow money and issue bonds therefor; such bonds are 
not bills of credit. The paper currency issued by the 
Continental Congress, and by the several States prior 
to the adoption of the Constitution, was known as bills 
of credit. 

The evils of the paper money issued by the States 
after the war of the Revolution are strikingly depicted 
by Mr. Madison. "The loss which America has sus- 
tained since the peace, from the pestilent effects of 
paper money on the necessary confidence between man 
and man ; on the necessary confidence in the public 
councils ; on the industry and morals of the people, 
and on the character of republican government, con- 
stitutes an enormous debt against the States charge- 
able with this unadvised measure, which must long 
remain unsatisfied; or rather an accumulation of guilt, 
which can be expiated no otherwise than by a volun- 
tary sacrifice on the altar of justice, of the power 
which has been the instrument of it.'' 1 

The States are also forbidden to make any thing but 
gold and silver coin a legal tender in payment of 
debts. The Constitution virtually places the control 



federalist, No. 44. 



1. X. 1. PROHIBITIONS ON THE STATES. 157 

of the whole subject of money and the currency with 
the general government. The States have, indeed, 
established banks and authorized them to issue notes 
for circulation, but it has been by sufferance, and not 
by Constitutional authority. The general government, 
in the establishment of national banks, have assumed 
the exercise of the power which it was manifestly the 
intention of the Constitution they should possess. 

While the power to coin money is among the powers 
of Congress mentioned in Section 8, nothing is said as 
to the power of Congress to emit bills of credit, or to 
make any thing but gold and silver a legal tender. 
These powers, have, how r ever, been considered as be- 
longing to Congress, and both have been exercised. 
The United States notes now in circulation as money, 
known as "greenbacks" or "legal tenders," are bills 
of credit, and they would be such even if they were 
not required by law to be received in payment of 
debts. 

The States as well as the general government are 
prohibited from passing any bills of attainder or ex post 
facto laws. There would be no propriety in allowing it 
to the former, if prohibited to the latter. Very wisely 
such laws are entirely prohibited. 

No State can pass laws impairing the obligation of 
contracts. The obligation here spoken of is legal, not 
moral. "The spirit of the provision is this: A con- 
tract which is legally binding upon the parties at the 
time and place it is entered into by them, shall remain 
so, any law of the States to the contrary notwithstand- 
ing." 1 ' 

Under this clause the States are clearly prohibited 
from passing bankrupt laws, which should impair the 
obligation of contracts made antecedently to their pas- 
sage. The Supreme Court has decided, however, that 



tiffany, p. 217. 



158 THE CONSTITUTION. 1. X. 1. 

the States may pass laws operating upon future con- 
tracts between their own citizens. 

But this prohibition does not apply to the general 
government. The States can not pass laws impairing 
the obligation of contracts, but Congress may establish 
uniform laws on the subject of bankruptcies through- 
out the United States. " The general government has 
jurisdiction over all persons and property within the 
United States, to execute the plenary power and au- 
thority of the nation in respect to all subjects commit- 
ted to its jurisdiction. It can determine upon what 
conditions and in what degree individuals may be re- 
leased from the complete fulfillment of their contracts. 
That is, as the supreme authority upon that subject. 
Congress can by law determine the limit of legal obli- 
gation arising out of every species of indebtedness, and 
can prescribe the manner by which a party should 
proceed to obtain legal absolution of his debts." ■ 

The term, contract, is made to include grants, which 
are contracts that have been executed. A grant made 
by a State legislature is irrevocable. Whenever a law 
is in its own nature a contract, and absolute rights 
have vested under it, a repeal of that law can not di- 
vest those rights, or annihilate or impair the title so 
acquired. 2 

If a charter of a bank, which has been incorporated 
by a State, should prescribe the manner in which the 
bank should be taxed, the State could not subsequently 
alter the mode of taxation, not even if meanwhile the 
State should have adopted a new Constitution prescrib- 
ing the manner in which banks should be taxed. 

So a charter of a college is a contract which the 
legislature of a State can not annul or impair. The 
State of New Hampshire attempted to change the 
charter of Dartmouth College, transferring the govern- 



1 Tiffany, p. 217. - Story. 



1. X. 2. PROHIBITIONS ON THE STATES. 159 

ment of the institution from the old charter trustees to 
new trustees appointed under the legislative act. But 
the action of the legislature was declared by the Su- 
preme Court to be unconstitutional. 

Clause 2. — No State shall, without the consent of the 
Congress, lay any imposts or duties on imports or ex- 
ports, except what may be absolutely necessary for execut- 
ing its inspection laws: and the net produce of all du- 
ties and imposts, laid by any State on imports or exports, 
shall be for the use of the treasury of the United States; 
and all such laws shall be subject to the revision and 
control of the Congress. No State shall, without the 
consent of Congress, lay any duty of tonnage, keep 
troops or ships of war in time of peace, enter into any 
agreement or compact with another State or with a for- 
eign power, or engage in war, unless actually invaded, 
or in such imminent danger as will not admit of delay. 

The authority to levy duties on goods imported prop- 
erly belongs to the general government. The exercise 
of this power by the several States, prior to the adop- 
tion of the Constitution, was one of the chief causes 
of the overthrow of the Articles of Confederation. The 
whole power is now vested in Congress, and the States 
are by this clause prohibited from laying any duties 
except with the consent of Congress, and the revenue 
obtained in such case must be paid ' into the treasury 
of the United States. 

The object of inspection is to secure a certain stand- 
ard of excellence in commodities offered for sale, so 
that purchasers may not be imposed upon. An in- 
spector is appointed under State law, whose duty it is 
to examine flour, pork, etc., and certify as to its 
quality. If it comes up to the required standard he 
stamps or brands the cask or package accordingly. 
Sometimes the inspector is paid by the city which ap- 



160 THE CONSTITUTION. 1. X. 2. 

points him, and sometimes his compensation is ob- 
tained by means of fees. Thus in Ohio the inspector 
of refined oil receives from six to ten cents a barrel for 
inspecting it. To prevent the State from receiving 
any revenue from this source, the Constitution re- 
quires that all fees beyond the cost of inspection shall 
be paid into the national treasury. 

A State can not lay duties on imports or exports 
indirectly. Maryland once required all importers of 
foreign goods, and those selling the same in the origi- 
nal package, to take a license from the State, for 
which a fee of fifty dollars was to be paid. The Su- 
preme Court decided that the law requiring this was 
unconstitutional, because it virtually levied a duty on 
the articles imported. 

The Constitution in no other clause refers to tax- 
ation of any kind by State authority. But it every- 
where recognizes the existence of the States as gov- 
ernments, and thus presupposes their power to levy 
taxes. For the support of its local government a State 
may tax its citizens, but it may not levy duties on 
imports, save with the consent of Congress, and for 
inspection purposes. And the Supreme Court has de- 
cided that a State can not levy a tax that shall in 
any way obstruct the legislation of the general gov- 
ernment. Thus a State can not tax United States 
bonds or Treasury notes, or a bank chartered by the 
general government, except as provision is made for 
such State taxation by Congress; while the United 
States may levy a tax upon State bonds, or banks 
chartered by the States. When Congress tax the 
chartered institutions of the States they tax their 
own constituents; and such taxes must be uniform. 
But when a State taxes an institution created by Con- 
gress it taxes an instrument of a superior and in- 
dependent sovereignty, not represented in the State 
legislature. (Story.) 



2. I. I. THE EXECUTIVE DEPARTMENT. 161 

Duties on tonnage are duties on ships. A ship that 
can carry five hundred tons of freight is said to be of 
five hundred tons burden. Where duties are levied 
upon ships, it is in proportion to their capacity, or 
the amount of freight they can carry. If the States 
are prohibited from raising a revenue from goods im- 
ported, they should also be prohibited from taxing the 
ships in which the goods are brought. 

The other prohibitions in this clause refer to matters 
of national sovereignty. The whole control of questions 
relating to peace and war, treaties, alliances, etc., is 
placed in the general government; and nothing can 
be done by the States in these matters except under 
its direction. It has been seen that there are implied 
as well as express prohibitions on the powers of the 
States. Thus "no State can control, or abridge, or in- 
terfere with the exercise of any authority under the 
national government. And it may be added that State 
laws, as, for instance, State statutes of limitations, and 
State insolvent laws, have no operation upon the rights 
or the contracts of the United States.'' (Story.) 

ARTICLE II. 
THE EXECUTIVE DEPARTMENT. 

Sec. 1, Clause 1. — The Executive power shall be vested 
in a President of the United States of America. He shall 
hold his office during the term of four years, and, together 
with the Vice-President y chosen for the same term, be elected 
as folloics : 

From the Declaration of Independence to the time 
when the Constitution went into operation, there had 
been no Executive Department. In the Convention 
there was no difference of opinion as to the propriety 
and necessity of establishing such a department dis- 
tinct from the Legislative. There was not the same 

C. G. 14. 



162 THE CONSTITUTION. 2. I. fc 

unanimity as to the other questions, viz., whether the 
power should be vested in a single person, what should 
be the term of office, how the Executive should be 
chosen, and whether the office should be held a second 
time by the same person or persons. The vote in the 
Committee of the Whole was "That a national Execu- 
tive be instituted, to consist of a single person, to be 
chosen by the national legislature (Congress) for the 
term of seven years." Subsequently the Committee of 
Detail reported the same clause, with the addition that 
he should not be elected a second time. Repeated efforts 
were made in the Convention by the delegates from 
Pennsylvania, to change the mode of election, so that 
the Executive might be elected by the people, or by 
electors, instead of by Congress; but only two States 
voted for the change. It was then referred to the 
Committee of one from each State, appointed to report 
on the unfinished parts of the Constitution, who re- 
ported it nearly as it was finally adopted. 

There is no difference of opinion at the present time 
in regard to the importance of unity in the Executive. 
All are agreed that this power must be lodged in the 
hands of one man. To divide responsibility is to in- 
troduce feebleness. Every government should be ad- 
ministered with firmness and vigor. When laws are 
enacted they must be executed. The maxim that that 
government is best which governs least, is not true. 
That government is best which is so promptly and 
wisely administered that there will be little disposition 
to violate or evade the law. Republics are often af- 
firmed to be feeble of necessity; but there is no incon- 
sistency between a republican government and great 
firmness and energy of administration. 

The Executive power "shall be vested," that is, is 
vested. The President duly elected has the power by 
the Constitution, without any law conferring it on 
him. The power is vested in the President alone; not 



ILL THE EXECUTIVE DEPARTMENT. 163 

in him and his Cabinet. In some of the States the 
Executive power is exclusively in the Governor; in 
others the joint action of the Governor and Council 
is required. The Executive power is not denned in 
the Constitution. Whatever it is, it is vested in the 
President. The Constitution authorizes him to do some 
things which do not necessarily belong to him as Presi- 
dent. Thus he has a qualified negative on the legis- 
lation of Congress; with the advice and consent of the 
Senate he can make treaties; he is Commander-in-Chief 
of the Army and Navy. But whatever else may belong 
to the Executive Department, this does, that the Presi- 
dent should see that the laws are executed. 

We have seen that the Convention that framed the 
Constitution decided in Committee of the Whole that 
the term of office of the President should be seven 
years, and that he could not hold the office a second 
term. Both these provisions were subsequently changed; 
the term of office being four years, and the restriction 
to a single term having been stricken out, so that the 
people may elect the same man to the Presidency as 
many times as they please. 

From the adoption of the Constitution to 1840, each 
successive President was a candidate for re-election, 
and five were elected a second time, viz., Washington, 
Jefferson, Madison, Monroe, and Jackson. John Adams, 
John Quincy Adams, and Martin Van Buren were nomi- 
nated for a second term, but not elected. Since 1840 no 
President has been nominated for re-election except Mr. 
Lincoln in 1864, and General Grant in 1872, who were 
both elected. Thus seven Presidents have been elected 
a second time, three have been candidates for a second 
term, but have failed of an election, and six have not 
been re-nominated. No President has been a candidate 
for a third term. 

The question of one presidential term has been much 
agitated. It is doubtful whether the Convention acted 



164 THE CONSTITUTION. 2. I. 2. 

wisely in reducing the length of the term from seven 
years to four, and in striking out the clause forbidding 
a re-election. " The election of a supreme executive 
magistrate for a whole nation, affects so many interests, 
addresses itself so strongly to popular passions, and 
holds out such powerful temptations to ambition that 
it necessarily becomes a strong trial to public virtue, 
and even hazardous to the public tranquillity. * * 
This is the question that is eventually to test the 
goodness, and try the strength of the Constitution." 1 

Besides the excitement attending the election of the 
executive head of a great nation, which is so great 
that Mr. Paley condemns all elective monarchies, and 
thinks nothing is gained by a popular election worth 
the dissensions, tumults, and interruptions of regular 
industry, with which it is inseparably attended, there 
is the unfavorable influence on the President himself. 
It is natural that he should desire the approbation of 
the people as manifested by a re-election. But the 
danger is that this desire may tempt him to shape 
his administration so as to secure a renomination. 

Clause 2. — Each State shall appoint, in such manner 
as the legislature thereof may direct, a number of Electors 
equal to the whole number of Senators and Representatives 
to which the State may be entitled in the Congress; but no 
Senator or JRepresentcdive, or person holding an office of 
trust or profit under the United States, shall be ap/pointed 
an Elector. 

The President and Vice-President are to be chosen 
by Electors, but the manner in which the Electors are 
to be appointed is left to the legislature of each State. 
" The Electors were at first chosen in four different 
modes, viz.. by joint ballot of the State legislatures, by 



1 Kent, I, p. 273. 



3, I. 2. THE ELECTION OF PRESIDENT. 165 

a concurrent vote of the two branches of the legis- 
lature, by the people of the State voting by general 
ticket, and by the people voting in districts. This 
latter mode was evidently that which gave the fairest 
expression to public opinion by approaching nearest 
to a direct vote. But those States which adopted it 
were placed at the disadvantage of being exposed to a 
division of their strength and neutralization of their 
vote; while the Electors chosen by either of the other 
methods voted in a body on one side or the other, thus 
making the voice of the State decisively felt. This 
consideration induced the leading States of Massachu- 
setts and Virginia, which originally adopted the dis- 
trict system, to abandon it in 1800." l 

The election in 1844 was the first in which the 
electoral vote in no State was divided. In 1860, New 
Jersey divided her vote; and in 1872 the Democratic votes 
were scattered, as Mr. Greeley, the candidate, had died. 
With these exceptions, all the Electors in any given 
State have since 1844 voted for the same candidates, 
and the President and Vice-President have received 
the same number of votes. 

The Constitution determines the number of Electors. 
Whatever may have been the mode of choosing them, 
whether by the people or the legislature, it has been 
the practice to take one from each Congressional dis- 
trict, and two from the State at large. No qualifica- 
tion is required for an Elector except the negative 
one, that he shall not hold an office of profit or trust 
under the United States. 

The third clause has been abrogated by an Amend- 
ment which was proposed by Congress in December, 
1803, and having been ratified by the requisite num- 
ber of States, became valid as a part of the Constitu- 
tion in September, 1804. This clause will be found in 



1 Lanman's Dictionary of Congress, p. 427. 



166 THE CONSTITUTION. 3. I. 3. 

the note. 1 The Amendment substituted for it is Article 
XII of the Amendments, and is as follows : 

The Electors shall meet in their respective States, and 
vote by ballot for President and Vice-President, one of 
whom, at least, shall not be an inhabitant of the same State 
with themselves; they shall name in their ballots the person 
voted for as President, and in distinct ballots the person 
voted, for as Vice-President, and they shall make distinct 
lists of all persons voted for as President, and of all per- 
sons voted for as Vice-President, and of the number of 
votes for each, which lists they shall sign and certify, and 
transmit sealed to the seat of the government of the United 
States, directed to the President of the Senate. The Presi- 
dent of the Senate shall, in the presence of the Senate and 



1 Clause 3. — The Electors shall meet in their respective States, 
and vote by ballot for two persons, of whom one at least shall not 
be an inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of votes 
for each, which list they shall sign and certify, and transmit sealed 
to the seat of the government of the United States, directed to the 
President of the Senate. The President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted. The person having 
the greatest number of votes shall be the President, if such number be 
a majority of the whole number of Electors appointed; and if there be 
more than one who have such a majority, and have an equal number 
of votes, then the House of Representatives shall immediately choose 
by ballot one of them for President ; and if no person have a major- 
ity, then from the five highest on the list, the said House shall in like 
manner choose the President. But in choosing the President, the 
votes shall be taken by States, the representation from each State 
having one vote. A quorum for this purpose shall consist of a 
member or members from two-thirds of the States, and a majority 
of all the States shall be necessary to a choice. In every case, 
after the choice of the President, the person having the greatest 
number of votes of the Electors shall be the Vice-President. But 
if there should remain two or more who have equal votes, the 
Senate shall choose from them by ballot the Vice-President. 



Amend. 12. THE ELECTION OF PRESIDENT. 167 

House of Representatives, open all the certificates, and the 
votes shall then be counted; the person having the greatest 
number of votes for President shall be the President, if such 
number be a majority of the whole number of Electors ap- 
pointed ; and if no person have such majority, then from 
the persons having the highest numbers, not exceeding three, 
on the list of those voted for as President, the House 
of Representatives shall choose immediately, by ballot, the 
President But in choosing the President, the votes shall 
be taken by States, the representation from each State 
having one vote; a quorum for this purpose shall consist 
of a member or members from two-thirds of the States, and 
a majority of all the States shall be necessary to a choice. 
And if the House of Representatives shall not choose a 
President, whenever the right of choice shall devolve upon 
them, before the fourth day of March next following, then 
the Vice-President shall act as President, as in the case of 
the death or other constitutional disability of the President. 
The person having the greatest number of votes as Vice- 
President shall be the Vice-President, if such number be 
a majority of the whole number of Electors appointed, 
and if no person have a majority, then from the two 
highest numbers on the list the Senate shall choose the 
Vice-President ; a quorum for the purpose shall consist 
of two-thirds of the whole number of Senators, and a 
majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the 
office of President shall be eligible to that of Vice-Presi- 
dent of the United States. 

According to the original clause the Electors were to 
vote for two persons without designating either as 
President or Vice-President. The one who had the 
greatest number of votes, provided that number was a 
majority of all the votes cast, was to be the President, 
and the other the Vice-President. If two had the 



168 THE CONSTITUTION 2.1.3. 

same number, being a majority, the House of Represent- 
atives was to choose one of them for President. If no 
one had a majority, the House of Representatives was 
to choose a President from the five highest. 

The chief points of difference between the methods are 
these two: according to the Amendment each Elector 
votes for President as such, and also for Vice-President ; 
and if the election goes to the House of Representa- 
tives, the choice is from the three highest, instead of 
from five, as was provided in the original article. 

At the first election General Washington was voted 
for by each of the Electors, 69 in number. Mr. John 
Adams, who became Vice-President, as having the 
next highest number of votes, received only 34; the 
remaining 35 votes having been divided among ten 
candidates. 

At the second election, in 1792, General Washington 
was again elected unanimously, receiving 132 votes. 1 
Mr. Adams was re-elected Vice-President, receiving 77 
votes, a majority of the whole. 

At the third election, in 1796, Mr. Adams was 
elected President, receiving a small majority of the 
votes; and Mr. Thomas Jefferson became Vice-Presi- 
dent, though he had not a majority. 

At the fourth election, in 1800, Messrs. Jefferson and 
Burr, who belonged to the same political party, had 
the same number of votes, being a majority of the 
whole ; and thus the choice devolved upon the House 
of Representatives. There were sixteen States, of 
which eight voted for Jefferson, six for Burr, and two 
were divided. They continued to vote thus for thirty- 
five ballotings, occupying seven days, nominally with- 
out adjournment. On the thirty-sixth ballot, the two 
divided States voted for Jefferson, and so he became 
President, and Aaron Burr Vice-President. It was this 



James Monroe in 1820, received all the Electoral votes but one. 



2. L 3. THE ELECTION OF PRESIDENT. 169 

difficulty that led to the amendment of the Constitu- 
tion, which Amendment was ratified before the fifth 
election in 1804. 

The election of President has devolved on the House 
of Representatives in one other case. In the fall of 
1824, Andrew Jackson received 99 Electoral votes, John 
Quincy Adams 84, William H. Crawford 41, and Henry 
Clay 37. General Jackson lacked 32 of a majority, and 
the choice devolved on the House of Representatives. 
As the choice must be from the three highest, Mr. Clay 
could not be voted for. Of the twenty-four States, thir- 
teen voted for Mr. Adams, seven for General Jackson, 
and four for Mr. Crawford. John C. Calhoun, the can- 
didate for Vice-President on the ticket with General 
Jackson, was elected, having received 182 votes. In 
this case the President and Vice-President belonged to 
different political parties. 

Once only has the choice of Vice-President devolved 
on the Senate. In the fall of 1836, Martin Van Buren 
received 170 votes out of 294 for President, and was 
elected: Richard M. Johnson failed of an election to 
the Vice-Presidency by one vote, having received 147. 
He was chosen by the Senate. 

Practically the people vote for President and Vice- 
President, and it is known who is to be the next Pres- 
ident long before the Electoral College convenes. Thus 
the voting by the Electors has become a mere form, 
though it was not so intended. Various plans have 
been suggested in respect to the mode of electing the 
President, but Congress has never yet proposed an 
amendment since the Constitution was altered in 1804. 
By the present mode a candidate may have a large 
majority of the Electoral votes, and yet be in a de- 
cided minority so far as the popular vote is concerned. 

By the original article a Vice-President could not be 
chosen till the President had been chosen; a failure in 
the choice for the first office would involve there- 
C. G, 15- 



170 THE CONSTITUTION. 2. I. 4. 

fore a failure in the second also. The Amendment 
avoids this difficulty, by providing that the Senate 
may choose a Vice-President if no one has been chosen 
by the Electoral vote. In the failure by the House of 
Representatives to choose a President by the fourth of 
March, the Vice-President already chosen by the Sen- 
ate will act as President. 

It is usual for the two Houses to meet in the House 
of Representatives, when the votes are opened by the 
President of the Senate, and handed to the tellers (one 
from the Senate and two from the House), who count 
the votes and announce the result. In February, 1865, 
Congress passed the twenty-second joint rule, by which 
the vote of no State should be counted if objected to 
by either House. This feature of the rule was not en- 
forced in 1865 or 1869, but was in 1873, the Senate ob- 
jecting to the votes from Arkansas, and three votes for 
Mr. Greeley from Georgia. Before 1877 it was repealed 
by the Senate. In January, 1877, an act was passed, 
applicable to that election only, that no vote of a State 
should be rejected except by concurrent vote of both 
Houses, and that all cases of two or more sets of votes 
from the same State should be referred to a Commission 
of fifteen, composed equally of Senators, Representa- 
tives, and Judges of the Supreme Court. The cases re- 
ferred were those of Florida, Oregon, South Carolina, 
and Louisiana, and were all decided by a vote of eight 
to seven, and Mr. Hayes was elected by a vote of 185, 
Samuel J. Tilden having 184. 

Clause 4. — The Congress may determine the time of 
choosing the Electors, and the day on ivhich they shall 
give their votes; which day shall be the same throughout 
the United States. 

After the Constitution had been ratified by the requi- 
site number of States, the Continental Congress ap- 
pointed the first Wednesday in January, in 1789, as 



2. I. 5. PRESIDENTIAL ELECTORS. 17l 

the day for choosing Electors, the first Wednesday in 
February for the Electors to assemble and vote for 
President, and the first Wednesday of March as the 
day on which to commence proceedings under the new 
Constitution. 1 The first Wednesday of March was the 
fourth day of the month, in the year 1789. 

In 1792 an act was passed requiring that the Electors 
be appointed within thirty-four days preceding the first 
Wednesday in December; that the Electors should 
meet and give their votes on the first Wednesday in 
December; that the votes should be counted on the 
second Wednesday of February; and that the Presi- 
dential term of four years should commence on the 
fourth daj T of March. All these provisions remain in 
force, except that as to the time of choosing Electors. 
By act of Congress of January, 1845, they are to be 
chosen on the Tuesday next after the first Monday in 
November. Each State may provide for filling any 
vacancy which may occur in its college of Electors. 
By the Amendment to the Constitution, made in 1804, 
if the House of Representatives should not elect a 
President by the fourth of March, the Vice-President 
becomes President: the fourth of March is thus vir- 
tually made by the Constitution, as well as by statute, 
the day when a new Presidential term begins. 

The Electors in each State make and sign three cer- 
tificates of all the votes given by them, one of which 
is to be forwarded by special messenger to the Presi- 
dent of the Senate at Washington, one is to be sent to 
him by mail, and one is to be delivered to the judge 
of that district in which the Electors meet. 

Clause 5. — Ko person, except a natural-born citizen, 
or a citizen of the United States at the time of the adop>- 
tion of this Constitution, shall be eligible to the office of 



Journal Cont. Cong., XIII, 105. 



172 THE CONSTITUTION. 2. I. 6. 

President; neither shall any person be eligible to thai 
office who shall not have attained to the age of thirty- 
jive years, and been fourteen years a resident within the 
United States. 

At the time of framing the Constitution, a number of 
men of foreign birth were among the most prominent 
in the nation, some of them being members of the 
Convention. This exception in favor of those who 
were citizens at the time the Constitution was adopted 
was a mark of respect to them. 

A residence abroad on official duty would not inca- 
pacitate one from holding the office of President. Mr. 
Buchanan had been Minister to England just prior to 
his election to the Presidency in 1856. 

Clause 6. — In case of the removal of the President from 
office, or of his death, resignation, or inability to discharge 
the powers and duties of said office, the same shall devolve 
on the Vice-President ; and the Congress may by laic pro- 
vide for the case of removal, death, resignation, or inability, 
both of the President and Vice-President, declaring what 
officer shall then act as President, and such officer shall act 
accordingly, until the disability be removed, or a President 
shall be elected. 

Until near the close of the Convention that framed 
the Constitution, nothing had been said of a Vice-Presi- 
dent. The Senate had been authorized to choose their 
own presiding officer, and in case of the death or re- 
moval of the President of the United States, the Pres- 
ident of the Senate was to become President. The 
Convention had decided that the President should be 
elected by Congress ; but there was difficulty in arrang- 
ing the details, and the Committee of one from each 
State finally reported a new r plan, providing for an 
election of President by means of Electors appointed 
in the several States. This plan seemed to render de- 



2. I. 6. THE EXECUTIVE— VICE-PRESIDENT. 173 

sirable the election of a Vice-President, and thus the 
Constitution made provision for such an officer. 

We have seen that, according to the Amendment 
adopted in 1804, the Senate may choose a Vice-Pres- 
ident immediately, if there has been no election by 
the people. If, therefore, by possibility the House of 
Representatives, when the election devolves on them, 
should fail to elect a President by the fourth of March, 
the Vice-President would become President. 

Congress has provided by law 1 that in case of the re- 
moval, death, resignation, or inability of both President 
and Vice-President, the President pro tempore of the 
Senate, and in case there is no such President, the 
Speaker of the House of Representatives, shall act as 
President until the disability be removed, or a Presi- 
dent be elected. If the Vice-President becomes Presi- 
dent, he holds the office during the remainder of the term 
for which the President was elected; if the President 
pro tempore of the Senate, or the Speaker of the House, 
should be called to act as President, he would act till a 
new President could be elected. Such special election 
would be held at the same time of the year as the reg- 
ular election. 

The act of 1792 provides that " whenever the offices of 
the President and Vice-President shall both become va- 
cant," a special election shall be held. This would in- 
clude the case of non-election at the regular time, for 
which the Constitution does not provide ; hence the 
constitutionality of that part of the act has been 
doubted. 

As the Constitution seems to distinguish between 
members of Congress and civil officers, in Article I, 
Section 6, Clause 2, and as the President must " com- 
mission all the officers of the United States " ( Article 
II. Section 3), it has been maintained by some that 



March 1st, 1792. 



174 THE CONSTITUTION. 2. I. 7. 

neither the President of the Senate nor the Speaker of 
the House is an " officer " in the meaning of the Con- 
stitution ; and, therefore, that the act of 1792 has no 
constitutional authority, as the Constitution authorizes 
Congress to declare what " officer " shall act as Presi- 
dent. This objection was made when the bill was 
under discussion in the House of Representatives, and 
that body substituted the Secretary of State in place 
of the President of the Senate and Speaker of the 
House ; but as the Senate refused to concur in this 
substitution, the House receded from its amendment, 
and the bill was passed as it now stands. 

A vacancy in the office of President has occurred 
three times, and in each instance by the death of that 
officer. General William Henry Harrison died April 
4th, 1841, just one month after his inauguration, and 
was succeeded by John Tyler, April 6th. General 
Zachary Taylor died July 9th, 1850, and was succeeded 
by Millard Fillmore, July 10th. Abraham Lincoln was 
assassinated on the night of April 14th, 1865, and was 
succeeded by Andrew Johnson, April 15th. 

Clause 7. — The President shall, at stated times, receive 
for his services a compensation, ivhich shall neither be in- 
creased nor diminished during the period for ivhich he shall 
have been elected, and he shall not receive within that period 
any other emolument from the United States, or any of them. 

The salary of the President was made twenty-five 
thousand dollars a year, and that of the Vice-President 
five thousand dollars, by act of Congress September 
24th, 1789, and again February 18th, 1793. The former 
continued the same to the third of March, 1873, when 
it was raised to fifty thousand. The salary of the Vice- 
President was raised to eight thousand dollars in~1853, 
to ten thousand March 3d, 1873, and reduced to eight 
thousand January 20th, 1874. A furnished house is pro- 
vided for the President. The salaries are paid monthly. 



2. I. 8. THE EXECUTIVE — OATH OF OFFICE. 175 

Clause 8.— Before he enter on the execution of his office, 
he shall take the following oath or affirmation : 

" I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and 
will, to the best of my ability, preserve, protect, and defend 
the Constitution of the United States." 

The oath is administered to the President by the 
Chief Justice of the Supreme Court, in connection with 
the inauguration ceremonies, which are held at noon on 
the fourth of March. 

After the death of President Harrison, Mr. Tyler took 
the oath prescribed in the Constitution, " although he 
deemed himself qualified to perform the duties and ex- 
ercise the powers and office of President without any 
other oath than that which he took as Vice-President." 
The same was done by Mr. Fillmore and Mr. Johnson. 
It is said that the Cabinet of President Harrison pro- 
posed that Mr. Tyler be styled " Acting President," but 
the proposition was declined. The Constitution says 
the powers and duties of the office " shall devolve on 
the Vice-President " in case of the removal of the Presi- 
dent, but that Congress shall declare what officer shall 
"act as President," when there is neither President nor 
Vice-President. There appears to be no reason, then, for 
using the style " Acting President " in the case of the 
Vice-President succeeding to the office, whatever might 
be done if the President of the Senate or the Speaker 
of the House should be called to the Executive chair. 

Sec. 2, Clause I. — The President shall be commander- 
in-chief of the army and navy of the United States, and 
of the militia of the several States when called into the 
actual service of the United States; he may require the 
opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the 
duties of their respective offices, and he shall have power 



176 THE CONSTITUTION. 2. II. 1. 

to grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment. 

Most writers on the Constitution have regarded the 
authority to command the army and navy as neces- 
sarily belonging to the Executive Department. This 
is the opinion of Story, and Kent, and Duer. Mr. Tif- 
fany thinks, however, that the duties of the President 
as military head of the nation may be contemplated 
as distinct from those devolving on him as the chief 
magistrate. " The powers and duties of the President 
as commander-in-chief of the army and navy are sepa- 
rate and distinct from his powers and duties as the 
simple Executive head of the nation; and neither of 
those functions of the presidential office derives any 
strength from the other. As the chief Executive of the 
nation he takes no authority from the military depart- 
ment of his office; and as commander-in-chief he gets no 
aid from the civil department of the same. That is, his 
authority as commander-in-chief is the same as it would 
have been, had it been an office separated from, and 
independent of, the office of President of the United 
States. Had the Constitution provided for the appoint- 
ment of some other person than the presidential incum- 
bent to that office, the powers and duties of the office 
would have been the same." 1 

Whatever may be true in theory, there are great prac- 
tical advantages in making the President the military 
as well as the civil head of the nation. 

The only reference in the Constitution to the heads 
of the executive departments is found in this and the 
following clauses. The language implies that such de- 
partments would be established, but the Constitution 
neither in Section 8, of Article I, nor elsewhere, speci- 
fies the power to establish them as one of the powers 



Tiffany's Treatise, \). 340. 



2. II. 1. THE EXECUTIVE — PARDONS. 177 

belonging to Congress. The heads of these departments 
are the advisers of the President. Collectively they are 
called his Cabinet. They have frequent meetings at 
which measures are discussed, and in addition their 
written opinions are given to the President whenever 
he requires them. The opinions of the Attorney- 
Generals fill a number of volumes. 

A reprieve suspends for a time the execution of a 
sentence, especially when the criminal has been sen- 
tenced to death. A pardon is a full release from the 
punishment which would otherwise be inflicted. The 
power to reprieve or pardon implies the possible im- 
perfection of human justice. Circumstances may come 
to light after a trial which, had they been known be- 
fore, would have secured a different result. This pre- 
rogative of mercy is found in all civilized governments, 
and it is properly lodged with the Executive. Our 
Constitution gives it to the President, except in cases 
of impeachment. "The power of impeachment will 
generally be applied to persons holding high offices 
under the government; and it is of great consequence 
that the President should not have the power of pre- 
venting a thorough investigation of their conduct, 
or of securing them against the disgrace of a public 
conviction by impeachment, if they should deserve 
it." (Story.) 

The same writer thinks the President would have 
no authority to pardon in case of contempts; as it 
would tend to make the legislative bodies wholly de- 
pendent upon his good will and pleasure for the exer- 
cise of their own powers. 

The language of the Constitution is that the Presi- 
dent shall have power "to grant reprieves and par- 
dons." For the meaning and use of the expression 
"to grant pardons," we are referred to the English 
law, which allowed the king as the sovereign to pardon 
before trial as well as after... Was. this. the intention 



178 THE CONSTITUTION. 2. II. 1. 

of the framers of our Constitution ? Judge Field, in 
giving the opinion of the Supreme Court in the case 
of Garland, said: "The power thus conferred is un- 
limited, with the exception stated; it extends to every 
offense known to the law, and may be exercised at any 
time after its commission, either before legal proceed- 
ings are taken, or during their pendenc}^, or after con- 
viction and judgment." 

Mr. Tiffany views the matter differently. "To par- 
don or reprieve a man implies that he has become, in 
the eye of the law, the subject of punishment to be 
inflicted upon him. It implies that the law has pro- 
nounced him guilty, and denounced upon him the 
penalty. The Executive, as an officer of the law, can 
know nothing of the guilt or innocence of a party, or 
of his need of a reprieve or pardon, until his guilt has 
been judicially ascertained. No reprieve or pardon can, 
in law, be granted, until there be that from which a 
reprieve is needed, or for which a pardon is demanded." 1 
" There may be cases as in rebellion or civil war where 
a large class of citizens may need, and public policy 
may require, an amnesty in their behalf. But such 
exigency addresses itself to the legislative, not to the 
executive department of government." 2 

This seems to have been the view of Congress when, 
by act of July, 1862, they authorized the President to 
extend pardon and amnesty by proclamation to those 
in rebellion against the government, with such condi- 
tions as he might deem expedient. On the third of 
December, 1863, President Lincoln issued an amnesty 
proclamation, referring to the action of Congress. Other 
proclamations were issued by Mr. Lincoln and Mr. 
Johnson prior to the repeal of the section authorizing 
such offers of amnesty. The latter, however, issued 
proclamations of like character after the repeal — Jan- 



1 Tiffany, p. 335. 2 Ibid p. 338. 



2. II. 2. THE EXECUTIVE— TREATIES. 179 

uary 19th, 1867 — giving the Constitution as his au- 
thority, in answer to an inquiry made by the Senate. 
President Fillmore granted a conditional pardon to a 
man convicted of murder and sentenced to be hung. 
The condition was that he be imprisoned during his 
life. It was commuting the sentence of death to im- 
prisonment for life. The Supreme Court held that 
such a pardon was within the power of the President. 

Clause 2,— He shall have power, by and with the ad- 
vice and consent of the Senate, to make treaties, provided 
two-thirds of the Senators present concur; and he shall 
nominate, and by and with the advice and consent of the 
Senate, shall appoint Ambassadors, otlier public Minis- 
ters and Consuls, Judges of the Supreme Court, and cdl 
other officers of the United States, whose appointments are 
not herein otherwise provided for, and which shall be es- 
tablished by law; but the Congress may by law vest the 
appointment of such inferior officers as they think proper, 
in the President alone, in the Courts of law, or in the 
heads of Departments. 

The ''advice and consent" of the Senate, both in 
making treaties and in appointments to office, is, in 
practice, consent rather than advice. The treaty is 
made and then sent to the Senate for their concur- 
rence. A nomination is made by the President and 
the Senate acts upon the question of confirmation. 

A treaty is an agreement or contract between two 
nations. In Great Britain the power to make treaties 
is in the Crown. In a republic the people may place 
it where they choose. The wisdom of giving it to the 
President and Senate will hardly be questioned. To 
give it to the President alone would intrust to him 
more power than is consistent with the nature of our 
government. It could not well be placed in Congress 
because of the promptness and secrecy often necessary. 



180 THE CONSTITUTION. 2. II. 2. 

By requiring the concurrence of two-thirds of the Sen- 
ate with the President the Constitution has provided 
as ample a guaranty as could well be required for the 
maintenance of the rights and honor of the country. 

While the power to make treaties is general and un- 
restricted it is not to be so construed as to destroy the 
fundamental laws of the land. " A treaty to change 
the organization of the government, to annihilate its 
sovereignty, to overturn its republican form, or to de- 
prive it of its constitutional powers, would be void ; be- 
cause it Avould destroy what it was designed merely to 
fulfill, the will of the people" (Story). 

Cases may arise where a given end may be reached 
either by a treaty or by ordinary legislation. Thus, 
Congress authorized the admission of the Republic of 
Texas in either of two modes — by treaty, to be nego- 
tiated by the Executive with that Republic; or by the 
acceptance, on the part of Texas, of certain terms speci- 
fied in the joint resolution of the two Houses. " The 
annexation was made, in fact, by the acceptance of the 
propositions of Congress. So that the treaty was made 
directly with Texas by Congress, and not by the Presi- 
dent with the advice and consent of -two-thirds of the 
members of the Senate, as the treaty-making power." 1 

If a treaty made by the President and Senate with 
a foreign power involve the payment of money, can 
Congress exercise any discretion as to the appropria- 
tion ? This question came up during the administra- 
tion of President Washington, and was debated with 
great earnestness in the House of Representatives. 
The treaty was one made by Mr. Jay with Great Brit- 
ain, and in some of its features was obnoxious. The 
House by a large majority passed a resolution, that 
whenever a treaty required laws to be passed to carry 
it into effect, they had a constitutional right to delib- 



'Farrar/p. 333. 



2. II. 2. THE EXECUTIVE— TREATIES. 181 

erate and determine the propriety or impropriety of 
passing such laws, and to act thereon as the public 
good should require. Shortly after, however, Congress 
passed a law to carry the treaty into effect. 

Says Chancellor Kent, "If a treaty be the law of the 
land, it is as much obligatory upon Congress as upon 
any other branch of the government or upon the people 
at large, so long as it continues in force and unre- 
pealed." l 

It is claimed that whenever territory has been ac- 
quired by treaty, Congress has been consulted before- 
hand ; that in the three great cases of the purchase of 
Louisiana, of Florida, and of California, Presidents Jef- 
ferson, Monroe, and Polk consulted Congress beforehand 
to ascertain its wishes in the matter, thus apparently 
recognizing the authority of the House of Representa- 
tives to make or refuse the necessary appropriations. 

As the Constitution (Article VI.) expressly makes 
treaties, no less than the statutes enacted by Congress, 
to be the supreme law of the land, might not a treaty- 
stipulation for the payment of money be construed to 
be an appropriation made by law, according to the 
meaning and intent of the Constitution? If so, the 
money might be lawfully drawn from the treasury, 
even if Congress made no appropriations. 

It is evident, however, that the framers of the Con- 
stitution did not contemplate the purchase of territory 
as belonging to the treaty-making power, and President 
Jefferson at the time Louisiana was purchased admit- 
ted that the authority to make the purchase was not 
given to the government in the Constitution. As, prior 
to the purchase of Alaska, Congress has always been 
consulted whenever it was proposed to enlarge our do- 
main, and as there are grave doubts whether the ac- 
quisition of territory comes w T ithin the province of 



Vol. I, p. 256. 



182 THE CONSTITUTION. 2. II. 2. 

treaties, it seems desirable that in all such cases the 
consent of Congress should be obtained. 

In framing a treaty the President acts through the 
Secretary of State, a foreign minister, or a plenipoten- 
tiar\ r appointed for the purpose. The treaty is signed 
by the representatives of the two nations, and then sub- 
mitted to the respective governments for their ratifica- 
tion. After the ratifications have been exchanged, the 
President issues his proclamation, making the treaty 
public, "to the end that it may be observed with good 
faith by the United States and the citizens thereof."' 

In discussing a treaty, as well as in considering a 
nomination, the Senate sit with closed doors. It is 
called going into Executive session. Two-thirds of the 
members present must concur in the ratification of a 
treaty, while a majority is sufficient to confirm a nom- 
ination to office. 

Nominations are sent to the Senate by the President 
in writing. The nomination is by the President alone. 
The Senate can confirm the nomination or reject it, but 
the} r can not make the nomination. The wisdom of 
this mode of appointment is thus stated by Mr. Ham- 
ilton : " The blame of a bad nomination would fall upon 
the President singly and absolutely. The censure of 
rejecting a good one would lie entirely at the door of 
the Senate; aggravated by the. consideration of their 
having counteracted the good intentions of the Execu- 
tive. If an ill appointment should be made, the Ex- 
ecutive for nominating, and the Senate for approving, 
would participate, though in different degrees, in the 
opprobrium and disgrace." l 

The Constitution provides that Ambassadors, other 
public ministers and consuls, and Judges of the Supreme 
Court, must be appointed by the President and Senate ; 
but such " inferior officers " as Congress may designate, 



federalist, No. 77. 



2. II. 2. THE EXECUTIVE— APPOINTMENTS. 183 

may be appointed by the President alone, by the courts ; 
or by the heads of departments. It has not been deter- 
mined who are, or who are not, '"inferior officers;" but 
it may be considered settled that the heads of depart- 
ments do not belong to this class. If Congress does 
not vest the appointment of any officer in the President 
alone, in the courts, or in the head of a department, 
then, as a matter of course, the President and Senate 
appoint, no matter how insignificant the office may be. 

The courts have been invested with very little power 
of appointment; but the heads of departments have 
had large power of this kind. Formerly, the Post- 
master-General could appoint and remove all deputy 
postmasters. This gave him an enormous patronage, 
which was continually increasing. But the Thirty- 
seventh Congress, at its third session, enacted that the 
Postmaster-General should appoint' those deputies only 
whose compensation is less than one thousand dollars 
a year, all others being appointed by the President. 

While the Constitution makes provision for appoint- 
ment to office, it says nothing in regard to removal 
from office. At the time the Constitution was under 
discussion in the States, its friends spoke of the consent 
of the Senate as no less necessary for the removal of an 
officer than for his appointment. 1 But in the First Con- 
gress the question came up in the House of Represent- 
atives, and was discussed at great length. In a bill es- 
tablishing a Department of Foreign Affairs — now called 
the Department of State — it was provided that the Sec- 
retary might be removed by the President. The debate 
occurred on a motion to strike out this provision. 

It was maintained on the one side that the power to 
appoint and the power to remove must go together; if 
the President could appoint only with the consent of the 



1 "The consent of that body would be necessary to displace as well 
as to appoint." — Federalist, Xo. 77. 



1S4 THE OOMBXITUTI & EL 2. 

• 

Senate, their consent must also be necessary to remove. 
On the other side it was held that appointing to office 
and removing therefrom were executive acts. If the 
Constitution had ^ociated the Senate with the 

President in the matter of appointments, Congress 
could not have given them that power; and as the 
-ritution had not conferred upon the Senate the 
r to unite with the President in removal, Cor ig se 
authorized t<; :. — ::::.:: :V. ■.-.:-. ---v-. :;-. T ?: — :- 
dent in removing from office. 1 The bill, with the pro- 
vision authorizing the President to remove from office, 
finally passed the House of Representatives by a vote 
of twenty-nine to twenty-two, and the Senate by a ma- 
jority of two. 2 How strong was the opposition to giving 
such power to the President appears from the language 
of Mr. Sumter, of South Carolina, who said: "This bill 
appears, to my mind, so subversive of the Constitution, 
and in its consequences so destructive of the liberties 
of the people, that I can not let it pass without ex- 
sing my detestation of the principle it involves 
*' That the final decision of this question in favor of 
the executive power of removal was greatly influenced 
by the exalted character of the President then in office, 
sserted at the time, and has always been believed; 
the loci rine was opposed, as well as supported, by 
the highest talents and patriotism of the country. The 
public, however, acquiesced in the decision ; and it con- 
stitutes, perhaps, the most extraordinary case in the his- 
tory of the government of a power conferred by impli- 
cation on the Executive by the assent of a bare majority 
of C which has not been questioned on many 

other occasion- - 1 Dry.) 



1 Annals of Congress I. ] 

hen the question first came before the Senate, some members 

were absent, and the Senate were equally divided, the Vice-President 

giving the casting vote. — Pitkin's History, voL II, p. 326. 

" Annals of Congress I, p. 591. 



2. II. 2. THE EXECUTIVE — REMOVALS. 185 

For forty years after the adoption of the Constitution 
there were very few removals from office, except as a 
public necessity to secure greater efficiency in the dis- 
charge of official duty. Such, unquestionably, was the 
expectation when the Constitution was formed. Mr. 
Madison, in the debate referred to above, used the fol- 
lowing language: "I contend that the wanton removal 
of meritorious officers would subject him (the Presi-J 
dent) to impeachment and removal from his own high 
trust." l "It can not be doubted,'' says Mr. Tiffany, 
"that the practice of creating vacancies by removals 
from office, without any reference to the fidelity or 
efficiency of those removed, or to the better qualifica- 
tions or character of those who are appointed to their 
places, is a violation of both the letter and the spirit 
of the Constitution." 2 

But, although for many years men were appointed to 
office for their fitness, a change had taken place before 
the first half century had elapsed. In 1835, during the 
second term of General Jackson's administration, a 
Committee of the Senate, Mr. Calhoun Chairman, ap- 
pointed to investigate the subject of "Executive Pat- 
ronage," used the following language in their report: 
" It is easy to see that the certain, direct, and inevita- 
ble tendency of this practice is to convert the entire 
body of those in office into corrupt and supple instru- 
ments of power, and to raise up a host of hungry, 
greedy, and subservient partisans, ready for every 
service, however base and corrupt. Were a premium 
offered for the best means of extending to the utmost 
the power of patronage ; to destroy the love of country 
and substitute a spirit of subserviency and man-wor- 
ship; to encourage vice and discourage virtue; and, in 
a w T ord, to prepare for the subversion of liberty and 
the establishment of despotism, no scheme more perfect 



Annals of Congress I, p. 497. 2 Treatise, p. 350. 

C. G. 1G. 



186 THE CONSTITUTION. 2. II. 2. 

could be devised. * * The question now is, not how, 
or where, or with whom, the danger originated, but how 
it is to be arrested; not the cause, but the remedy. • 

Although bills had been introduced into Congress :: 
limit the President's power of removal, no bill to that 
effect was passed until 1S66. In July of that year it 
was enacted that " Xo officer in the military or naval 
service shall, in time of peace, be dismissed from serv- 
ice except upon and in pursuance of the sentence 
of a court martial to that effect, or in commutation 
thereof." This was under the administration of Presi- 
dent Andrew Johnson. In March, 1867. an "Act regu- 
lating the tenure of civil offices'" was passed, which 
provided that the President might suspend an officer 
during a recess of the Senate, reporting the same with 
the reasons for it to the Senate within twenty days 
after their assembling; if the Senate should concur in 
the removal, another person might be appointed. But 
if the Senate should not concur, the suspended officer 
was to resume his duties. This bill was vetoed by 
President Johnson, but passed over his veto by a large 
majority in each House. It was chiefly for violating 
the provisons of this act, in removing Secretary Stan- 
ton after the Senate had refused to concur in his sus- 
pension, that the House of Representatives brought 
articles of impeachment against the President. 2 

Thus, after more than three-quarters of a century, the 
legislative construction given to the Constitution in 
1789, was reversed in 1867. In each case the action of 
Congress was doubtless largely influenced by their esti- 
mate of the character of the Executive. The question 
has never yet been the subject of judicial construction. 

The frequent changes in office, and the appointment 
of men often sadlv deficient in intellectual and moral 



1 Senate Doc, 2d Sess., 23d Cong., vol. 3. No. 109. 

2 This act was modified by act of April 5th. 1869. 



2. II. 3. THE EXECUTIVE — FILLING VACANCIES. 187 

qualifications, form one of the sources of official cor- 
ruption. The subject of "Civil Service Reform" has 
been largely discussed within the last few years, and 
various plans have been suggested to remedy existing 
evils. Three things have been affirmed to be requi- 
site in order to bring about a reform: a competitive 
examination of all candidates for subordinate offices; 
promotion to higher grades on the principle of service 
and desert; and a tenure of office during good behavior, 
or for a term of years. 

Clause 3. — The President shall have power to fill up 
all vacancies that may happen during the recess of the 
Senate, by granting commissions which shall expire at 
the end of their next session. 

When an appointment has been made in the usual 
mode, that is, the President having nominated and 
the Senate having confirmed, the commission is not 
made out till the Senate have signified their concur- 
rence. If the person nominated by the President is 
rejected by the Senate, of course no commission is 
issued. But when a vacancy is filled in the recess of 
the Senate, the President grants a commission, which 
continues in force until the end of their next session. 
If the President nominates to the Senate one whom 
he had thus appointed and commissioned, and the 
Senate confirms the nomination, a new commission is 
issued, and, if a bond had been given under the first 
appointment, a new one is required. 

Suppose a vacancy had been filled by the President 
in the recess of the Senate, and the officer thus ap- 
pointed should be nominated to the Senate at their 
next session, and be rejected : could the President, after 
'the adjournment of the Senate, re-appoint the same 
person? Would this be a "vacancy" in the meaning 
of the Constitution? If the Senate have rejected an 
officer, the President should not appoint him to the 



i vi the ooxstittt: s. hl 

same office. The consent of the Senate to an appoint- 
ment is clearly required by the Constitutioii, and that 

instrument contenrpL .- - ::■:■- . ; h e 7 : - • : : :. : 
only when there is no : t. t . r: : niiy :■: :. - " :__ : 
Senate. If the Senate Take no action upon a nomi- 
nation, the President. - '_..-: .- _V_;:t i- i« - — - :hai :he 
laws are executed, must make :::-: : :_.:_.: ::::__ self 

This occurred under the adminisir. .::. :. :■:' ":--:-" 
-J. Q . Adanis. President Monroe made a nomin a :: : =. 
which was rejected, and after the expiration of the 
:n filled the Tacancy by ;.r_ :__t:_~ 7 - 

dent Jackson nominated i ~l:z: :ht Senile 

rejected, and he subsequently renewed the :___:: :: 
of the same person. The Senate laid the ::::....-_:.. 
on the table, and adjourned without taking fa: 
action on the subject. After the adjourn:.. 
Senate, the President appointed the man. It would 
have been better if the Ser had acted upon 
nomination. The nomination hi", been z: 
second time could again hare 'z>- :_ : " I:; :; ~ 

case the President would have feh .:_. t_. / :.; zilizt 
a different a r. z : :_ : ii ent. 

Section *.— He shall from time to time give to tike 

Congress iiifc - T~ 

recommend to their consideration such measures am he 
shall judge necessary and expedfcemzj he may, on exbna- 

: .V::.' :>_■.-: *i:-\*. .-;■,:■-/,•: ]■:>:': H; :...>.>. ; .. -• . • : - 
thi ■• and in .-:■>- ;-" .-..'->■-. :"\-. .., .; ■:-.':■■.■ -'.-. . : -\ -v- 
spect to the time o/ adjournment, he mag adjourn them 
to such time as he shall think proper; he shall rece&oe 
ambassadors and other public minister*; he shall tube 
care that the 

n all th, ~ - 

It is customary for the Preside! - 
of each regular session, to send a 



2. III. THE EXECUTIVE — DUTrES. 189 

which contains a summary of the reports from the 
heads of departments, and a general account of the 
operations of the government for the year, with such 
suggestions as he may deem expedient. Accompany- 
ing the message are the full reports of the various 
departments, and documents containing detailed infor- 
mation as to every branch of the government. The 
" Message and Documents" and "Executive Documents" 
fill annually a number of octavo volumes. The Presi- 
dent also sends special messages from time to time, 
recommending such measures of legislation as he 
thinks the interests of the country require, or con- 
taining information requested by Congress. 

President Washington delivered his first message to 
both Houses assembled in the Senate Chamber. He 
continued to deliver his messages in person at the 
opening of each session of Congress, during the eight 
years of his administration, and his example was fol- 
lowed by Mr. Adams. Each House appointed a com- 
mittee to prepare a reply, which, when adopted by 
the House, was presented to the President. This was 
in accordance with the custom of England and other 
constitutional governments. Mr. Jefferson, however, 
preferred to send his message, to be read to each House 
by its clerk. There was no expectation of an answer. 
This custom has been followed to the present time. 

The authority given to the President to convene 
Congress has been used on eight occasions. President 
Adams called an extraordinary session for May 15th, 
1797, on account of the difficulties with France; Presi- 
dent Madison, May 22d, 1809, and again May 24th, 1813 
both because of difficulties with England; President 
Van Buren, September 4th, 1837, to consider the finan- 
cial condition of the country ; President Harrison, May 
31st, 1841, for the same purpose; President Pierce, 
August 21st, 1856, because of the Kansas troubles; 
President Lincoln, July 4th, 1861, on account of the 



1 90 THE CONSTITUTION. 2. HI. 

rebellion in the south ; President Hayes, October 15th, 
1877, for want of an appropriation for the Army. Pres- 
ident Jefferson convened Congress October 17th, 1803, 
three weeks earlier than usual, because of the purchase 
of Louisiana, and the difficulties with Spain. 

The House of Representatives has never been con- 
vened alone, but the Senate has often been, for execu- 
tive business. 

No case has yet arisen of disagreement between the 
two Houses in regard to the time of adjournment, and 
therefore the President has never had occasion to use 
the contingent power of adjourning them. In England 
the sovereign may at any time prorogue or dissolve 
Parliament. 

The President is to receive ambassadors and other 
public ministers. Diplomatic intercourse with other 
nations is carried on through the Executive Depart- 
ment. Instructions to our foreign ministers, though 
bearing the signature of the Secretary of State, are 
always in the name and by the order of the President. 
To receive an ambassador or other public minister is to 
recognize the country from which he comes as belong- 
ing to the commonwealth of nations. 1 The Southern 
Confederacy made great efforts to secure such recogni- 
tion from Great Britain and France during the war of 
the rebellion. 

The power to receive involves the power to refuse 
to receive, or to reject and dismiss. This may be done 
for reasons pertaining to the minister himself, as in 
the case of M. Genet, the French minister, whom 
President Washington requested France to recall in 
1794, or on account of the relations of the two govern- 
ments. 

The President " shall take care that the laws be 
faithfully executed, and shall commission all officers 
of the United States." To see that the laws are exe- 
cuted is the great duty of the President. He is not to 



2. IV. IMPEACHMENT. 191 

make the laws, or repeal them, save as the Constitu- 
tion gives him a qualified negative in their enact- 
ment, but to take care that the laws arc duly enforced. 
When the meaning of a law is judicially called in 
question, it is not the province of the President to 
decide as to the true meaning and intent of the stat- 
ute; this belongs to the Courts. He may differ from 
the Supreme Court as to the interpretation of a law, or 
a clause of the Constitution, or he may think a stat- 
ute unwise or inexpedient; still, whatever has been 
enacted in accordance with the forms prescribed by 
the Constitution, must be executed in good faith by the 
President. For this purpose he is clothed with great 
power; the army and navy are under his orders. 
Either directly or indirectly all executive offices are 
-filled by men of his selection. It is his duty, therefore, 
to see that none are appointed to office but those who 
are honest and capable. 

Section -Jr. — The President, Vice-President, and all 
civil officers of the United States, shall be removed from 
office on impeachment for, and conviction of, treason, brib- 
ery, or other high crimes and misdemeanors. 

The other instances in which impeachments are al- 
luded to in the Constitution are these : The House of 
Representatives shall have the sole power of impeach- 
ment ; The Senate shall have the sole power to try im- 
peachments; When the President of the United States 
is tried, the Chief Justice shall preside ; In trials for 
impeachments, the Senate shall be on oath or affirma- 
tion, and the concurrence of two-thirds shall be neces- 
sary for conviction; Judgment shall not extend fur- 
ther than to removal from office, and disqualification 
to hold and enjoy an office of honor, trust, or profit 
under the United States; The party convicted may 
also be tried and punished according to law ; The 
President has power to grant reprieves and pardons 



192 THE "CONSTITUTION. 2. IV. 

for offenses against the United States, except in eases 
of impeachment; The trial of all crimes, except in 
cases of impeachment, shall be by jury. 

"While it is clear that the House of Representatives 
only can prefer articles of impeachment, and the Sen- 
ate only can try impeachments, it is not clear who 
may be impeached. The present section prescribes a 
minimum punishment for all "civil officers'' on con- 
viction, but the Constitution nowhere defines "civil 
officers," nor does it say that others are not liable to 
impeachment. The term civil is here supposed to be 
used in distinction from military and naval. Some un- 
derstand that members of Congress are not included 
under the designation "civil officers," as Section 3, 
Article II, provides that the President "shall commis- 
sion all the officers of the United States." As members 
of Congress are not commissioned by the President it 
is inferred that they are not "officers" in the sense of 
the Constitution. 

Articles of impeachment were brought against Wil- 
liam Blount, United States Senator from Tennessee, 
in 1797. The day after the resolution to impeach 
passed the House, Mr. Blount was expelled from the 
Senate, by a vote of twenty-five to one. Action, how- 
ever, was taken by both Houses for going on with the 
impeachment. Articles of impeachment were agreed to 
January 29th. 1798, and the Senate summoned Mr. 
Blount to appear and answer in the December following. 
At that time the Senate formed itself into a Court, and 
counsel for the defendant appeared and filed a plea 
that the Senate could not impeach one who was not 
then a Senator, and who was not an officer of the United 
States when the offenses charged were committed. The 
question of jurisdiction was then argued, and the court 
decided, 1 fourteen to eleven, that they had no jurisdic- 



Annals of Congress. 5th Congress. 



2. IV. IMPEACHMENT. 193 

tion, and so the case ended. The decision is supposed 
to have been on the ground that a Senator is not a 
"civil officer" of the United States. 

It appears that all "civil officers" may be im- 
peached for " high crimes and misdemeanors," and, if 
convicted, they shall be removed from office, and may 
be disqualified for any office under the government. It 
does not appear that they may not be impeached for 
other and lesser offenses, and punished in the same 
manner, or otherwise, not exceeding that. Military 
and naval officers, and even persons not in office may 
be impeached; at least the Constitution does not for- 
bid it. 

"It was the opinion of the framers and early admin- 
istrators of our government, that all the civil officers 
were impeachable for minor malfeasances in office, not 
amounting to high crimes or misdemeanors at law, 
and punishable in any manner not exceeding removal 
from, and disqualification for, office." 1 Mr. Madison's 
language in regard to removal from office has already 
been quoted : " The wanton removal of meritorious of- 
ficers would subject him (the President) to impeach- 
ment and removal from his high trust." 

Besides the case of Senator Blount, there have been 
six instances of impeachment. The first was that of 
Judge John Pickering, of the District Court of New 
Hampshire, in March, 1803. The second was that of 
Judge Samuel Chase, of the Supreme Court, in March, 
1804. James H. Peck, District Judge of Missouri, was 
impeached in April, 1830; West H. Humphries, District 
Judge of Tennessee, in May, 1862; Andrew Johnson, 
President of the United States, in February, 1868; and 
William W. Belknap, Secretary of War, in March, 1876. 

The charge against Senator Blount was an attempt to 
carry into effect a hostile expedition in favor of the Eng- 



x Farrar, p. 436. 
C. G. 17. 



194 THE CONSTITUTION. 2. IV. 

lish against the Spanish possessions in Florida and Lou- 
isiana, and to enlist some of the Indian tribes in the 
same. 

Judge Pickering was charged with great irregularities 
on the bench, as well as gross intemperance. He was 
undoubtedly insane at the time he was impeached, and 
did not appear in person or by counsel. The decision, on 
March 12th, 1804, was that he was guilty of the charges, 
by vote of nineteen to seven. By a vote of twenty to six 
he was removed from office. 

Judge Chase was charged with improper conduct on 
the bench, as manifesting partiality, injustice, and op- 
pression. There were eight articles of impeachment, on 
two of which eighteen Senators voted u guilty," and sixteen 
" not guilty f on the other six articles a majority voted 
"not guilty/ 7 He was, therefore, acquitted on every 
article. John Randolph was the leading Manager on the 
part of the House to conduct the case. 

Judge Peck was impeached for an abuse of his judicial 
power in punishing Mr. L. E. Lawless, an attorney, for 
contempt. The offense of Mr. L. was the publishing in 
a newspaper a criticism on a decision by Judge Peck, 
and he was punished by imprisonment for twenty-four 
hours, and suspension from the bar for eighteen months. 
The decision was in favor of Judge Peck, twenty-one 
Senators voting u guilty,* 7 and twenty-two " not guilty. 7 *' 
Mr. James Buchanan was the Chairman of the Managers. 

Judge Humphries was impeached for aiding the rebel- 
lion, for acting as Judge of a Confederate Court, for ill- 
treating loyal men, confiscating their property, etc. He 
did not appear in person or by counsel. The Senate 
pronounced him "guilty' 7 on each of the seven articles, 
and by a unanimous vote he was removed from office, 
and disqualified from holding any office of honor, trust, 
or profit, under the United States. Mr. John A. Bingham 
was the Chairman of the Managers. 

President Johnson was impeached for removing S 



3. I. THE JUDICIARY. 195 

tary Stanton from office in alleged violation of the act 
regulating the terms of certain civil offices, passed March 
2d, 1867, and for affirming that the Thirty-ninth Con- 
gress was no Congress, etc.. etc. The President had sus- 
pended the Secretary in August, 1867, but the Senate 
voted in January, 1868, not to concur in the suspension. 
In February the Secretary, who had resumed his office, 
was removed by the President. Three days afterwards 
the House of Representatives passed resolutions of im- 
peachment. The articles were read to the Senate March 
4th, and the trial ended May 26th. Thirty-five Sena- 
tors voted "guilty," and nineteen "not guilty." Mr. 
John A. Bingham was the chief manager. 

Secretary Belknap was impeached for "high crimes 
and misdemeanors in office" in receiving money for an 
appointment to the post of trader at Fort Sill. The 
resolution of impeachment was adopted March 3d, but 
the trial did not end till August 1st. The question of 
jurisdiction was raised, as the Secretary had resigned 
before the House took action, but the Senate decided, 
thirty-seven to twenty-nine, that they had jurisdiction. 
The trial resulted in an acquittal, thirty-seven voting 
"guilty," and twenty-five "not guilty." The votes 
were nearly the same as to the guilt of the defendant 
and as to the jurisdiction of the Senate. Mr. Scott 
Lord was the chief manager. 

article in. 

(THE JUDICIARY. 

Section 1. — The judicial power of the United States 
shall be vested in one Supreme Court, and in such inferior 
Courts as the Congress may from time to time ordain and 
establish. The Judges, both of the Supreme and inferior 
Courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services a compensa- 



196 THE CONSTITUTION. S. I. 

tion ichich shall not be diminished during their contin- 
uance in office. 

The Judiciary is the third of the three great depart- 
ments of the general government. The Constitution 
itself provides for one Supreme Court, but leaves to Con- 
gress to determine how many inferior Courts should be 
established. The organization of the Supreme Court is 
also left to Congress. 

At the first session of Congress, in 1789, an act to or- 
ganize the Judiciary was passed. Two inferior Courts 
were established, called the Circuit Court and the Dis- 
trict Court. While there were thus three distinct Courts, 
there were but two kinds of Judges — Supreme and Dis- 
trict. The country was divided into thirteen districts, 
in each of which a Judge was to be appointed, who was 
to hold a Court four times in each year. These districts 
were grouped into three circuits, in each of which a 
Circuit Court was to be held twice a year, to be attended 
by two Supreme Judges and the District Judge. 1 The 
Supreme Court consisted of a Chief Justice and five Asso- 
ciate Justices. This Court was to hold two sessions each 
year at the seat of government. 

As the population of the country increased, and new 
States were admitted into the Union, the number of 
inferior Courts was increased, till, in 1863. there were ten 
Circuits and about forty Districts. By the act of March 
3d, 1863, the Supreme Court was composed of a Chief 
Justice and nine Associate Justices, the whole equal to 
the number of Circuits. But the act of July 23d, 1866. 
provided that no vacancy should be filled till the num- 
ber of Associate Justices was reduced to six. 

From 1793 till 1869 the Circuit Court was composed 
of one Judge of the Supreme Court ('instead of two, as 



1 In February, 1801, an act was parsed providing for the appoint- 
ment of sixteen Circuit Judges, but the act was in force but a single 
year, having been repealed in March, 1802. 



3. I. THE JUDICIARY— TERM OF OFFICE. 197 

at first) and the District Judge. In 1869 an act of Con- 
gress was passed creating Circuit Judges, one for each 
of the nine Circuits. The same act made the Supreme 
Court to consist of a Chief Justice and eight Associate 
Justices, corresponding to the number of Circuits. 

We have seen that in both the legislative and the 
executive departments the term of office is limited: the 
Representatives being elected for two years, the Senators 
for six, and the President for four. But in the judicial 
department the office is to be held during good behavior. 
This is virtually for life; for a Judge of the United 
States can be removed from office only by impeachment. 
As the Judges are not elected by the people, but appointed 
by the President and Senate, they would be virtually 
dependent on the other departments of the government 
unless their term of office was during good behavior. If 
the President, or the President and Senate, could remove 
them at pleasure, or if they were appointed for a limited 
term, the Judges could not be truly independent. It was 
the purpose of the Constitution to make this department 
co-ordinate with the others, and with no more depend- 
ence upon them than they should have upon it. The 
independence of the Judiciary is quite as important in a 
republic as in a monarchy. 

All the plans submitted to the Convention contained 
this provision, that the Judges should hold their offices 
during good behavior. While Messrs. Randolph, Pinck- 
ney, Patterson, and Hamilton differed as to many other 
things they agreed entirely as to the term of office of 
the Judges. The practical working of the system has 
been such as to commend it to the people. The Judges, 
made thus independent of the other departments of the 
government, and removed from the fluctuations of popu- 
lar opinion, have discharged the duties of their high 
trust with firmness and dignity. In some instances 
men have been appointed to the bench w r ho had previ- 
ously been intense political partisans; but with scarcely 



198 THE CONSTITUTION. 8. I. 

an exception they have laid aside party feeling when 
entering upon office, and as Judges have devoted them- 
selves faithfully and conscientiously to their appropri- 
ate duties of interpreting and applying the laws and 
the Constitution. 

In 1855 a Court of Claims was established, which has 
jurisdiction of claims against the government founded 
upon a law of Congress, on any regulation of an execu- 
tive department, or any contract, express or implied, 
with the government of the United States. Before the 
organization of this Court, those who had claims against 
the government which were not allowed by the depart- 
ments had no remedy but to petition Congress. This 
devolved a great deal of labor ujnon the members 
of Congress, while it Avas still difficult to adjust the 
claims. 

This Court consists of five Judges, of whom one is 
Chief Justice, who hold their offices during good be- 
havior. Their annual session commences at the same 
time with that of the Supreme Court, on the first 
Monday of December. 

There is also a Supreme Court of the District of 
Columbia, consisting of a Chief Justice and four As- 
sociates, who hold their offices during good behavior. 
Any one of these Justices may hold a District Court 
for the District of Columbia, with the same powers 
and jurisdiction as are exercised by the other District 
Courts of the United States. 

Supreme and District Courts are established in the 
Territories, but they are not considered as an integral 
part of the Judiciary of the United States. They are 
established by Congress in virtue of the general sover- 
eignty which exists in the general government over 
the Territories. The Judges are usually appointed for 
four years, unless sooner removed. 

The general Judicial system of the United States 
consists, then, of three grades of Courts — the Supreme, 



8. I. THE JUDICIARY— COMPENSATION. 199 

the Circuit, and the District. There are also three 
grades of Judges, corresponding to the Courts. The 
Supreme Court is held by the Supreme Judges, and 
the District Court by the Judge for the District. But 
the Circuit Court may be held by a Supreme Judge, the 
Circuit Judge, or the District Judge, or by any two of 
them. The Court for the District of Columbia is special 
for that locality, and the Court of Claims is special in 
regard to the cases brought before it. 

The compensation of the Judges of the United States 
Courts shall not be diminished during their continu- 
ance in office. The propriety of this provision is obvi- 
ous. If Congress could reduce their salaries at pleasure 
it would place them at the mercy of the legislative de- 
partment, and thus destroy their independence. 

When the Courts were organized in 1789, the salary 
of the Chief Justice of the Supreme Court was placed at 
$4000, and those of the Associate Justices at $3500 each. 
The District Judges received from $1000 to $1800. The 
salaries have been raised from time to time; since 
March, 1873, they have been as follows : the Chief 
Justice, $10,500; the Associates, $10,000; the Circuit 
Judges, $6000, and the District Judges from $3500 to 
$5000. 

By act of April 10th, 1869, it was provided that any 
Judge of any Court of the United States, having held his 
commission ten years, and having attained the age of 
seventy years, might resign his office and receive the 
same salary during life which was payable to him at 
the time of his resignation. 1 

The officers of the United States Courts are Attorneys, 
Marshals, Reporters, and Clerks. The Attorney-General 
is charged with the duty of conducting suits in the 
Supreme Court in which the United States shall be 



1 Judges Robert C. Grier and Samuel Nelson of the Supreme Court 
have resigned under this provision. 



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8. II. 1. THE JUDICIARY— CASES. 201 

cases of admiralty and maritime jurisdiction ; to contro- 
versies to which the United States shall be a party ; to 
controversies between two or more States; between a State 
and citizens of another State ; betivcen citizens of different 
States; between citizens of the same State, claiming lands 
under grants of different States ; and between a State, or 
the citizens thereof and foreign States, citizens, or subjects. 

The judicial power extends to all cases, etc. The Court 
has no power to act except when cases are brought before 
it. "All cases in law and equity are all suits, civil and 
criminal, involving controverted rights between party 
and party, and instituted in legal form of judicial pro- 
ceedings." l Until a case has been regularly brought before 
the Court the Judges have no power in regard to it. It 
is not their province to give information to Congress that 
a proposed law is unconstitutional, nor does it belong to 
them to advise the President that a law already enacted 
is in conflict with the Constitution. Their power is 
judicial merely. When a suit is commenced, and the 
case is before them, it is their duty to interpret the law 
involved, and to give the meaning of any part of the 
Constitution which may have a bearing upon the matter 
at issue. But the Court can not go beyond the case which 
is before them and give their views as to points not in- 
volved. The Judges do not make the law ; they interpret 
and apply it ; and this only as cases are regularly brought 
before the Court. 

The judicial power extends to cases in equity. " There 
is hardly a subject of litigation between individuals 
which may not involve those ingredients of fraud, acci- 
dent, trust, or hardship, which would render the matter 
an object of equitable rather than of legal jurisdiction, 
as the distinction is known and established in several 
of the States. It is the peculiar province, for instance, 



1 Farrar, p. 458. 



202 THE CONSTITUTION. 3. II. 1. 

of a Court of Equity to relieve against what are called 
hard bargains. These are contracts in which, though 
there may have been no direct fraud or deceit, sufficient 
to invalidate them in a court of law, yet there may have 
been some undue and unconscionable advantage taken of 
the necessities or misfortunes of one of the parties, which 
a Court of Equity would not tolerate. In such cases, 
where foreigners were concerned on either side, it would 
be impossible for the federal judicatories to do justice 
without an equitable as well as a legal jurisdiction." 1 
In some of the States there are separate Courts for cases 
of equity, called Courts of Equity or Courts of Chancery. 
In other States, the same Court has jurisdiction both in 
law and equity ; this is the case, as we have seen, in the 
United States Courts. 

The power extends to cases arising under the Constitu- 
tion, the laivs of the United States, and treaties made under 
their authority. The Constitution confers certain powers, 
grants certain privileges, and secures to the citizen cer- 
tain rights. If a citizen should be injured in regard to 
any of these, he could seek redress in a United States 
Court. If a law of the United States is violated, the 
offender must be tried before a National, not before a 
State Court. Robbery of the mail, evasion of the revenue 
laws, counterfeiting the coin of the country, would be 
instances of this. Any disregard of the stipulations of 
a treaty, whether by an individual, a corporation, or a 
State, would lead to a case arising under the treaties 
made by the authority of the United States, which must 
be tried before a National Court. 

The propriety of referring to the Courts of the United 
States the various cases enumerated in this clause can 
not be questioned. "The judicial power," says Chief 
Justice Jay, " extends to all cases affecting ambassadors, 
other public ministers, and consuls; because, as these 



1 Federalist, No. 80. 



3. II. 1. THE JUDICIARY— JURISDICTION. 203 

officers are of foreign nations, whom this nation is bound 
to protect, and treat according to the laws of nations, 
cases affecting them ought to be cognizable only by na- 
tional authority : 

To all cases of admiralty and maritime jurisdiction; 
because, as the seas are the joint property of nations, 
whose rights and privileges relative thereto are regulated 
by the laws of nations and treaties, such cases necessarily 
belong to national jurisdiction: 

To controversies to which the United States shall 
be a party; because, in cases in which the whole people 
are interested, it would not be equal or wise to let any 
one State decide and measure out the justice due to 
others : 

To controversies between two or more States ; because 
domestic tranquillity requires that the contentions of 
States should be peacefully terminated by a common 
judicatory, and because, in a free country, justice ought 
not to depend on the will of either of the litigants : 

To controversies between a State and citizens of 
another State ; because, in case a State — that is, all the 
citizens of it — has demands against some citizens of 
another State, it is better that she should prosecute their 
demands in a National Court than in a Court of the 
State to which those citizens belong, the danger of irri- 
tation and criminations arising from apprehensions and 
suspicions of partiality being thereby obviated : 

To controversies between citizens of the same State 
claiming lands under grants of different States; because, 
as the rights of the two States to grant the land arc 
drawn into question, neither of the two States ought to 
decide the controversy: 

To controversies between a State, or the citizens 
thereof, and foreign States, citizens, or subjects; be- 
cause, as every nation is responsible for the conduct 
of its citizens toward other nations, all questions 
touching the justice due to foreign nations or people 



-' .4 the « x»X5nrriiox. a. u. j. 

ought to be ascertained by and depend on national 

The judicial power of the United States is Urns made 
to extend to all cases mvolving national oil The 

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The United States had treaties with other nations, whose 
n_7.:: 77f .„.,: ;:' ;:_ T ; 7.-f — -«- ':- if: T ::. ::: 7 "■. 7 
judicial determinations. "To produce uniformity in 
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;■;.::: ::' 7n7 ; .:::-7: ;::: n z'zrZi zn.17 7f 1.5 ziiz.- 7zrTf7.: 
final determinations on the same point as there are courts. 
To avoid the confusion which would unavoidably result 
from the contradictory decisions of a number of inde- 
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and declare in the last resort a unilbrm rule of civil 
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The good results anticipated from the judicial sys- 
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realized. "The act of September. 178k providing for 
the organiiation of the courts has stood the test of 
ti:<7::t::-7 - z_ t ::...: ::~t — ::1 "rrj L::7t ./7::\:„. 
or improvement; and this fact is no small evidence of 
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the work of much profound reflection and of great 



- Fedfnfcs. Xo. 22. 3 RmL X«l afc. 



3. II. 1. THE JUDICIARY— JURISDICTION. 205 

legal knowledge; and the system then formed and re- 
duced to practice has been so successful and so benefi- 
cial in its operation that the administration of justice 
in the federal courts has been constantly rising in in- 
fluence and reputation." l The Chairman of the Com- 
mittee that reported the bill was Oliver Ellsworth, of 
Connecticut, who subsequently held the office of Chief 
Justice of the Supreme Court. 

The Constitution, as it originally stood, allowed suits 
to be brought against a State by citizens of another 
State, or by citizens or subjects of a foreign State. 
This caused dissatisfaction on the part of the States, 
as they were unwilling to be arraigned before the 
United States Courts on suits brought by private per- 
sons. For this reason an Amendment to the Constitu- 
tion w T as proposed by Congress March 5th, 1794: 

The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by citizens 
of another State, or by citizens or subjects of any foreign 
State. 

This was ratified by the legislatures of three-fourths 
of the States, and became a part of the Constitution, 
as announced by the President, January 8th, 1798. It 
is the Eleventh Amendment. While it relieves so far 
the dignity of the States, it weakens the power of the 
national judiciary to do justice to the citizen, which is 
one of the ends for which the Constitution was formed. 

The word State, in this clause (1) is interpreted by the 
Courts as not including the Territories or the District 
of Columbia. Hence, a citizen of one of the Territories 
or of the District of Columbia can not bring a suit in 
a United States Court. The National Courts, which are 
open to the citizens of every State, and even to aliens. 



1 Kent I, p. 305. 



206 THE C0X5TITUTI0X. 3. II. 2. 

are closed against a portion of the citizens of the United 
States 

No direct suit can be brought against the United 
States either by a citizen or a State, without the au- 
thority of an act of Congress. 1 But claims against the 
government may be brought before the Court of Claims. 

Nor are the officers of the general government liable 
to be sue I :.r acts performed in the regular discharge 
of their official duties. ' : The suability of the officers 
for acts in the regular routine of their duties, and their 
liability to appear in courts, and plead such proee — 
answer for it in their own persons or property, would 
not only stop the wheels of government, but break the 
whole machine to pieces, and put an end to that po- 
litical ideal being— the United State- 

Clause 2. — In all eases affecting ambassadors, other 
public ministers, and consuls, and those in which a State 
shall be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as to 
law and fact, with such exceptions and under such regida- 
tions as the Congress shall make. 

Jurisdiction is the power to hear and determine a 
cause. Original jurisdiction is the right to hear and 
determine a cause in the first instance. If a suit can 
be commenced in the Circuit Court, for instance, then 
that Court has original jurisdiction in the case. But 
if the case must be commenced in the lower court, then 
the Circuit Court has only appellate jurisdiction. 

The Constitution vests the judicial power in one 
Supreme Court and in such inferior Courts as Congress 
may establish. One Supreme Court must be estab- 
lished, but Congress may exercise its discretion as to 
the number and character of the inferior Courts. So, 



411. :rt I Opin. of Alt-Generals, I, p. 4-57. 



3. II. 2. THE JUDICIARY— JURISDICTION. 207 

also, the Constitution itself prescribes the cases in 
which the Supreme Court shall have original jurisdic- 
tion, that is, the cases which may be commenced in 
the Supreme Court. All other cases to which the ju- 
dicial power of the United States extends must be 
commenced in inferior Courts, and come before the Su- 
preme Court only by way of appeal or review. 

"It has been decided by the Court that this original 
jurisdiction can neither be enlarged nor diminished ; 
because, if enlarged it would detract from the Consti- 
tutional appellate jurisdiction ; and, if diminished, it 
would so far deny all jurisdiction to the Supreme 
Court, which can take appellate jurisdiction only in 
'other cases.' It must also be exclusive; because, if a 
case of this kind can originate in any other Court, this 
Court, not being able to take appellate jurisdiction, 
could have no jurisdiction at all." 1 

The language of this clause, as to the appellate power 
of the Supreme Court, implies the establishment of the 
inferior Courts in which the suits can be commenced. 
As already stated, two inferior Courts have been estab- 
lished : the Circuit Court and the District Court. The 
act of Congress establishing them prescribes in what 
cases the District Court and in what the Circuit shall 
have original jurisdiction. Of some cases, the District 
Courts were to have exclusive original jurisdiction ; 
and of others, this jurisdiction was to be concurrent 
with the Circuit Courts and the State Courts. So, also, 
the cases are prescribed which may be carried from the 
District Court up to the Circuit, and those which may 
be carried from the Circuit up to the Supreme Court. 

Unless Congress had made these "exceptions and 
regulations " the Supreme Court would have, by the 
Constitution, appellate jurisdiction in all the cases 
coming under the cognizance of the National Courts, 



^arrar, p. 468. 



208 THE CONSTITUTION. 3. II. 2. 

except those in which the Constitution had given' 
them original jurisdiction. Congress has "excepted" 
some cases out of the appellate jurisdiction of the Su- 
preme Court, giving the final disposition of them to 
the inferior Courts. 

The Act of Congress now referred to provides for the 
exercise of appellate power by the Supreme Court in 
certain cases which have been decided by the highest 
State Courts. Of course, these cases involve the Consti- 
tution, laws, or treaties of the United States; otherwise, 
the decision of the State Supreme Court would be final. 

Two views are held as to the appellate jurisdiction of 
the Courts. The language of the Constitution is, "In 
all the other cases before mentioned the Supreme Court 
shall have appellate jurisdiction both as to law and fact, 
with such regulations and exceptions as Congress shall 
make." Some maintain that the expression, " with such 
exceptions and regulations as Congress shall make," 
gives Congress the control of the whole matter. They 
hold that the Courts can exercise appellate jurisdiction 
in those cases only which Congress has provided for. 
If Congress had not provided any rule to regulate the 
proceedings on appeal, the Court could not exercise 
any appellate jurisdiction. This theory is, that all the 
judicial power of the nation, except in cases affecting 
ambassadors, etc., or those in which a State is a party, 
is placed at the disposal of Congress, who may give it 
out at their discretion. 

Others hold that the Constitution itself vests the ju- 
dicial power of the nation in the Supreme Court, and 
such inferior Courts as Congress may establish. The 
language of the Constitution is the same for the three 
departments of the government. As it says the Legis- 
lative power "shall be vested" in Congress, and the 
Executive power in the President, so the Judicial power 
"shall be vested" in the Courts. By the Constitution 
Congress may make the necessary laws, the President 



3. II. 2. THE JUDICIARY— APPELLATE POWER. 209 

may execute them, and the Courts may interpret and 
apply them. As Congress is not dependent upon the 
President for authority to legislate, neither are the 
Courts dependent on Congress for authority to exercise 
their judicial functions. According to this view the 
whole judicial power belongs to the Courts. "Congress 
may remove or 'except' some cases out of the appellate 
jurisdiction of the Supreme Court by giving it to some 
other Court of the United States, but not by abolishing 
it, or leaving it to be exercised or not by any body else. 
They may also make ' regulations ; ' that is, prescribe 
rules by which the jurisdiction shall be exercised so 
as to render it efficient and effectual for its purposes, 
but in no case to limit or obstruct it. 

" The only power conferred on Congress by this clause 
is to make exceptions to, and regulations for, the ap- 
pellate jurisdiction of the Supreme Court. If they do 
neither, that Court has the whole appellate power by 
the Constitution. If they make ' exceptions,' they must 
give cases excepted to some inferior Court. If the}' 
make 'regulations,' the jurisdiction must be exercised 
according to the rules so prescribed; otherwise, the 
jurisdiction must be exercised in conformity to such 
rules as the Court itself may prescribe, according to 
law." 1 Though the former of these views has been the 
one adopted in the main, both by the Legislative and 
Judicial departments of the government, the latter seems 
to be more in accordance with the spirit and letter of 
the Constitution. 

The Courts of the United States have a wider scope 
than those of Great Britain. If a law of Congress con- 
flicts with, the Constitution, the Supreme Court may 
declare it null and void. But the Courts of Great Brit- 
ain can only interpret and apply the statutes of Par- 
liament; they can not declare them null. There is 



1 Farrar, p. 471. 
C. G. 18. 



210 THE CONSTITUTION. 3. II. 2. 

no question of constitutionality or unconstitutionality 
touching an act of the British Parliament. Parliament 
itself is supreme for law-making purposes; it possesses 
all the legislative power of the British people. But 
while Congress can repeal or amend their own statutes, 
they can not alter or amend the Constitution. The 
Constitution is the work of the people, and they alone 
can amend it. The legislative power of Parliament, 
therefore, is broader than that of the Congress of the 
United States, and, as a consequence, the province of 
the British Courts is narrower than that of ours. 1 

It has been already said that the powers of the Courts 
are judicial, not 'political. Thus if there were two con- 
tending parties, each claiming to be the rightful govern- 
ment, of France, for instance, the question would not 
be left to the Judiciary. So if there should be a con- 
test between two parties in a State, each claiming to 
be the legitimate government, the question would be 
a political, and not a judicial, one. Congress has de- 
cided that the votes of certain States should not be 
counted in an election for President; Congress has also 
decided that, where the legislature of a State had voted 
to ratify an amendment to the Constitution, and subse- 
quently withdrawn its ratification, the vote of ratifica- 
tion must be counted. The Supreme Court has it- 
self decided that certain questions were political, and 
therefore did not come within its jurisdiction. The 
judiciary can not prescribe a policy for the govern- 
ment of the country. That must be left to the other 
departments. The judicial department can not restrain 
the others in their action, though the acts of both, 
when performed, are, in proper cases, subject to its 
cognizance. 2 

There is danger in times of high political excitement 
that one department may encroach upon another; but 



1 Yeaman's Study of Government, Chap. vii. 2 4 Wallace, 500. 



3. II. 2. THE JUDICIARY— DECISIONS. 211 

no government, save an absolute despotism, could be 
framed in which this liability would not exist. We 
have a right to assume that each department of the 
government will honestly and in good faith confine 
itself to the duties which by the Constitution have 
been assigned to it. 

Apprehension is sometimes expressed lest the Su- 
preme Court, by deciding acts of Congress to be unconsti- 
tutional, may obstruct the work of legislation, and block 
the wheels of government. But it must be remembered 
that each of the three great departments of the govern- 
ment is clothed with great power, and each may do in- 
calculable mischief, if so disposed; yet the history of the 
nation does not show that this power has been so used 
to any considerable extent. In general, the National 
Courts have been extremely cautious in regard to in- 
terference with the laws of Congress. 
L " It is an axiom in our jurisprudence," says Judge 
Swayne (United States vs. Rhodes and others), "that 
an act of Congress is not to be pronounced unconsti- 
tutional unless the defect of power to pass it is so clear 
as to admit of no doubt. Every doubt is to be resolved 
in favor of the validity of the law. Since the organi- 
zation of the Supreme Court but three acts of Congress 
have been pronounced void for unconstitutionality." ^1 
The first instance was in 1801, at the beginning of 
Mr. Jefferson's administration. Near the close of the 
administration of Mr. Adams, a person was appointed 
to office and his commission made out, but not deliv- 
ered. Mr. Jefferson withheld the commission. Appli- 
cation was made to the Supreme Court for a writ of 
mandamus, to compel Mr. Madison, the Secretary of 
State, to deliver it; the judiciary act of 1789 author- 
izing the Supreme Court to issue such writs. But the 
Court, while they held that to withhold the commission 
was an act not warranted by law, and violative of a 
vested legal right, decided that clause of the act of 1789 



212 THE CONSTITUTION. 3. II. 2. 

to be unconstitutional, as it gave the Court original 
jurisdiction where the Constitution had not given it. 1 

The second instance was in the celebrated Dred Scott 
case, in Mr. Buchanan's administration, in 1857. The 
Court decided that the eighth section of the act of Con- 
gress of 1820, preparatory to the admission of Missouri 
into the Union, commonly called the "Missouri Com- 
promise," was unconstitutional. This section prohibited 
slavery in that part of the Louisiana territory lying- 
north of thirty-six degrees thirty minutes north lati- 
tude, and not included in the State of Missouri. 2 (It was 
claimed by the minority of the Court at the time, and by 
other Judges of the same Court since, that this question 
was nOt before the Court, and, therefore, that what was 
said in regard to it was no more binding than the views 
of the minority.) 

The third case was that of Garland, of Arkansas, 
which was tried in the winter of 1866-7- Congress 
had enacted, (Act of July, 1862, amended by that of 
January, 1865,) that all officers of the United States, 
including attorneys practicing in United States Courts, 
should take a test oath. The Supreme Court decided 
that this act was unconstitutional as to attorneys of 
the Supreme Court, who were such before the rebellion, 
as being a bill of attainder and an ex pod facto law. 3 

The last two decisions were made in times of high 
political excitement, and were severely commented 
upon by lawyers ; the dissenting judges also gave their 
reasons for believing the laws in question to be strictly 
constitutional. Some other cases have occurred more 
recently, but they are comparatively unimportant. 

The fact that, in a period of more than fourscore years, 
Congress enacted but three laws, which, in the judg- 
ment of the Supreme Court, contained any thing conflict- 



1 1 Cranch, 137, Marbury vs. Madison. 2 19 Howard, 393, Scott 
vs. Sandford. 3 4 Wallace, 334, Ex parte Garland. 



3. II. 3. THE JUDICIARY— TRIAL OF CRIMES. 213 

ing with the Constitution, is a proof of the care and 
caution of Congress on the one hand, and, on the other, 
of the disposition of the Judiciary to avoid all encroach- 
ment upon the Legislative department of the govern- 
ment. 

Clause 3. — The trial of all crimes, except in cases of 
impeachment, shall be by jury; and such trial shall be 
held in the State where the said crimes shall have been com- 
mitted; but when not committed within any State, the trial 
shall be at such place or places as the Congress may by 
law have directed. 

A trial by jury is a trial by twelve men, impartially 
selected, who must all concur in the guilt of the person 
accused fcrefore he can be convicted. This right of trial 
by jury has long been regarded as one of the bulwarks 
of liberty. In the celebrated Magna Charta, granted by 
King John, at Runnymede, June 15th, 1215, is the fol- 
lowing article : " No freeman shall be taken, or im- 
prisoned, or disseized, or outlawed, or banished, or any 
ways injured; nor will we pass upon him, nor send upon 
him, unless by the legal judgment of his peers, or by 
the law of the land." " Nor will we pass upon him, nor 
send upon him " (nee super eum ibimus, nee super eum 
mittemus), is interpreted to mean that no man should 
be condemned (without trial by his peers) either in the 
Court of the King's Bench, where the king is supposed 
to be always present, and to render judgment in his own 
person, or before any judge whom the king may dele- 
gate to try him. 1 

The word peers means equals, and has reference to the 
different classes or orders of men in a country like Eng- 
land. Another article of Magna Charta says: "Earls 
and barons shall not be amerced but by their peers." A 
man must be tried by a jury composed of those who are 



1 Bowen's Constitution of England and America, p. 11. 



214 THE CONSTITUTION. 3. II. 3. 

of the same rank or standing with him. In the United 
States, as we have no orders of nobility, the trial is by 
a jury of impartial men. 

Most of the cases that come before the Supreme Court, 
and many of those before the lower Courts, are decided 
by the Court ; there is no jury. But the Judiciary act 
of 1789 provides that issues of fact, in the District Courts, 
in all causes, except civil causes of admiralty and mari- 
time jurisdiction, shall be by jury. So in the Circuit 
Courts, with the exception of equity suits, besides those 
above named, the trial of issues of fact shall be by jury. 
But the Constitution requires that all criminal cases, 
before any United States Court, shall be by jury. Cases 
of impeachment are tried by the Senate, as we have 
seen. 

The trial must take place in the State where the 
crimes were committed. This is a provision in favor 
of the accused. He is made to suffer as little incon- 
venience as possible. Offenses "not committed in any 
State"' are those in the District of Columbia: in the 
organized territories : in the Indian country; in the forts 
and arsenals of the United States; and upon the high 
seas. Provision is made by law for all these; those 
committed upon the high seas are tried in the State 
where the vessel first arrives. 1 

With us there is no conviction unless the jury are 
unanimous. '"The unanimity required in the verdicts 
of English and American juries was not originally re- 
quired among the people with whom the institution 
had its origin; the verdict being reckoned by a major- 
ity, except among the Xormans after they went to that 
province of France which has since borne their name. 
* * In Sweden the jury exists to-day as it has existed 
for many centuries. A verdict is given by one-half the 
jury, or any greater proportion, and the judge ; or by a 



1 PaschaFs Annotated Constitution, p. 211. 



Amend. 5. THE JUDICIARY— TRIAL OF CRIMES. 215 

unanimous jury against the opinion of the judge ; there 
being no verdict when the majority are opposed by a 
minority and the judge. * * We could now well con- 
sider whether absolute unanimity may not safely be 
dispensed with ; whether the jury is not less a necessity 
in a perfectly free community of equals than in one 
composed of the three orders ; whether its functions, in 
the progress of our political growth, have not been in 
great part, or entirely performed, so that in the future it 
is to be simply a preservative and safeguard instead of 
a forming and guiding influence — a conservative rather 
than a progressive force; and therefore whether we may 
not well limit its application to penal, criminal, and 
political causes and actions arising in tort or sounding 
in damages; leaving all matters of account, contract, 
title, and estates, entirely to the Court, without the in- 
tervention of a jury. Such, at least, seems to be the 
tendency of the professional judgment of the country." 1 
We may consider here some Amendments which re- 
late to the subject of the Judiciary. 

Amendment 5. — No person shall be held to answer for 
a capital or otherwise infamous crime, unless on a present- 
ment or indictment of a grand jury, except in cases arising 
in the land or naval forces, or in the militia when in 
actual service in time of war or public danger j) nor shall 
any person be subject for the same offense to be twice put 
in jeopardy of life or limb ; nor shall be compelled in any 
criminal case to be a witness against himself nor be de- 
prived of life, liberty, or property, without due process of 
law ; nor shall private property be taken for public use 
without just compensation. 

There are two juries, the grand jury and the petit 
jury ; the latter being meant when the word jury is 



1 Yeaman, Chap. xiii. 



216 the ooNsmruraoN. 



Amend. 5. 



used without any qualifying term. The grand jury is 
composed of a number of men, not less than twelve 
nor more than twenty-three, selected as prescribed by 
law. In the Xational Courts after the grand jury has 
been impaneled, the Judge delivers his charge to 
them, directing them to make careful inquiry of all 
offenses committed within the district against the 
laws of the nation, and to make presentment of the 
same. 

A presentment is an accusation made by the grand 
jury from their own observation or knowledge, or 
from evidence before them. An indictment is a formal 
accusation drawn up by the proper officer — in the 
United States Courts, the district attorney — charging 
offenses upon certain parties. It is the duty of the 
grand jury to examine the grounds of this accusation. 
If the evidence seem to them insufficient to warrant a 
trial of the party accused, they endorse upon the bill 
of indictment, -not a true bill.' 7 or " not found/' and 
the prisoner is released. But if they regard the accu- 
sation as well founded, they endorse upon the indict- 
ment the words u a true bill." In this case they are 
said to find the indictment, and the person accused 
must be brought to trial. A presentment may lead to 
an indictment, or it may not. Sometimes it is a mode 
taken by the grand jury to call public attention to cer- 
tain acts which are thought worthy of reprehension. 
Though the Constitution says no person can be tried 
unless on a presentment or indictment, no person is, in 
fact, brought to trial except on indictment. Congress 
has never authorized trials on presentment. 

No person may be subject to a second trial for the 
same offense. That is. when by the verdict of a jury, 
a man has b?en regularly acquitted or convicted of the 
offense charged, and judgment has been pronounced, 
:i not be tried for that offense a second time. But 
if the jury could not agree, or were discharged before a 



Amend. 6. THE JUDICIARY— TRIALS. 217 

verdict was rendered, or if judgment was arrested after 
a verdict, or a new trial granted in his favor, he might 
be tried again. 

No person may be compelled to testify against him- 
self, or be deprived of life, liberty, or property, without 
due process of law. In former times criminals have 
been compelled, and in some countries are now, to be 
witnesses against themselves, and even torture is used 
to wring from them a confession of guilt. Though the 
protection to the citizen specified in this Amendment 
was among the common-law privileges, it is inserted 
here for additional security. 

Private property shall not be taken for public use 
without just compensation. It is necessary for the 
government sometimes to take possession of private 
property for public purposes. A road is to be made, 
or a street is to be opened, for example. In some cases 
the property is purchased beforehand; but if a price 
can not be agreed on, or the owner will not sell, the 
property is condemned, and a jury are summoned to 
assess the damages. They may not place as high an 
estimate on it as the owner does, but this is a liability 
to which all are subject alike. 

Amendment 6. — In all criminal prosecutions the ac- 
cused shall enjoy the right to a speedy and publie trial 
by an impartial jury of the State and district wherein 
the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be in- 
formed of the nature and cause of the accusation ; to be 
confronted with the witnesses against him; to have com- 
pulsory process for obtaining ivitnesses in his favor; and 
to have the assistance of counsel for his defense. 

All but the last two of these provisions were a part 
of the common law of England. But, until a period, 
comparatively recent, the accused was not, in that 
c. G. 19. 



218 THE CONSTITUTION. Amend. 6. 

country, allowed in capital cases to have the assistance 
of counsel, or the right to compel the attendance of 
witnesses. We can hardly credit the statement, that 
before the accession of William and Mary, in 1688, a 
person arraigned for a capital crime was entitled neither 
to witnesses nor counsel. Yet such was the fact. 
(Judge Story). It was well, therefore, to guard these 
rights by a provision in the Constitution: thus mak- 
ing sure that in all the land an accused person should 
he entitled not only to a trial by jury, but to witn 
and counsel as well. 

Both these Amendments have reference to the civil 
administration of the government in time of peace. 
,; Whenever from invasion or rebellion the public safety 
may require the administration of martial authority, 
criminals may be tried, convicted, and executed, with- 
out the intervention of a jury." ■ 4 * The conspirators 
who assassinated the President of the. United States 
while the country was in a state of war, and while the 
citv of Washington was under martial law, were tri- 
able by military commission under the act of Congress, 
and not entitled to a trial by jury." 2 u The Constitution 
contemplates the possible existence of war with all its 
stern realities ; and provides for an administration of 
authority under its provisions suited to such exigen- 
cies. In times of peace the citizen is to be secure in 
the enjoyment of his civil liberty and rights, according 
to the established forms and usages of law. But the 
Constitution contemplates the possibility of a state of 
public danger arising from the presence of a foreign or 
domestic foe. * * It contemplates the necessary sus- 
pension for the time being, and in particular localities, 
of the civil functions of the government, that the 
martial powers of the same may be efficiently exer- 
cised, for the security and welfare of the nation. *" 3 



'Tiffany, p. 366. : P.i?chal. p. 264. 3 Tiffany, p. 259. 



Amend. 7. THE JUDICIARY— TRIALS. 219 

Amendment 7. — In suits at common law, where the 
value in controversy shall exceed twenty dollars, the right 
of trial by jury shall be preserved; and no fact tried by 
a jury shall be otherwise re-examined in any Court of 
the United States, than according to the rules of the com- 
mon law. 

The phrase " common law " is used in contradistinc- 
tion from equity, admiralty, and maritime jurisprud- 
ence. It is the common law of England, the lex non 
scripta, the immemorial customs of the country. Arti- 
cle III., Section 2, Clause 2, gives to the Supreme 
Court appellate jurisdiction both as to law and fact. 
"The real object of that provision was to retain the 
power of reviewing the fact as well as the law, in 
cases of equity, and admiralty, and maritime jurispru- 
dence." But as it was thought by some to authorize 
the Supreme Court to review the decision of a jury 
in mere matters of fact, and thus reduce to a form 
the right of trial by jury in civil cases, this Amend- 
ment was proposed to remove the misapprehension. 
The rules of common law recognized but two modes 
of re-examining facts tried by jury; first, the grant- 
ing a new trial by the Court before which the is- 
sue was tried; and, second, by a writ of error. A 
writ of error removes nothing for re-examination but 
the laiv. An appeal would remove the cause entirely, 
subjecting the fact as well as the law to a review and 
a retrial. But an appeal is a process of civil law 
origin and not of common law. 

Sec. 3, Clause 1. — Treason against the United States 
shall consist only in levying war against them, or in ad-l 
hering to their enemies, giving them aid and comfort. No 
person shall be convicted of treason unless on the testimony 
of two witnesses to the same overt act, or on confession in 
open Court 



220 x THE CONSTITUTION. 3. III. 1. 

Treason is the highest crime known to society, be- 
cause it tends to the destruction of the government 
itself. A traitor is always regarded as meriting the 
severest punishment that society can inflict. As treason 
is a breach of allegiance, it can be committed by one 
only against the government to which he owes alle- 
giance. Most governments have made the word treason 
include many offenses which were not strictly treason- 
able, and thus often persons have been put to death for 
crimes for which some milder punishment would have 
been sufficient. As the word implies a breach of faith, 
it was petit treason for a wife to kill her husband, or 
for a servant to kill his master. The act was more than 
murder ; it was a kind of treason. For a subject to at- 
tempt to take the life of the king or queen, or to levy 
war against the king, or to adhere to his enemies, was 
high treason. 

When a tyrannical king was on the throne, his judges 
would often declare offenses to be treason which the 
people never suspected to be treasonable. This was 
called constructive treason. To prevent this, a statute 
was enacted in England in the time of Edward III., 
which denned the term. This statute comprehended 
the various kinds of treason under seven heads. The 
third of these was, levying war against the king in his 
realms; and the fourth was, adhering to the king's 
enemies in his realm, and giving them aid and comfort 
in his realm or elsewhere. 

Our Constitution takes a part of this statute of Edward 
III. for its definition of treason. It is made to consist 
only in levying war against the nation, or in adhering to 
its enemies, giving them aid and comfort. The purpose 
was to make the meaning as definite as possible, that all 
opportunity for constructive treason might be removed. 
Mr. Madison thought the definition was too restricted, 
and that more latitude ought to be left to the discretion 
of Congress. But the Convention preferred to place the 



3. III. 1. THE JUDICIARY — TREASON. 221 

definition in the Constitution itself, and not to leave it 
to the judgment of Congress. 

It has been decided by the Court that there must be 
an actual levying of war; that a conspiracy to subvert 
the government by force is not treason. But after war 
has been commenced, men may give aid and comfort to 
the enemy, although they may not actually bear arms. 
The language of the Court is: If war be actually levied, 
that is, if a body of men be actually assembled for the 
purpose of effecting by force a treasonable purpose, all 
those who perform any part, however minute, or how- 
ever remote from the scene of action, and who are 
actually leagued in the general conspiracy, are to be 
considered traitors. 1 

While the Constitution thus makes the offense of 
treason to embrace the giving aid and comfort to the 
enemies of the country, opinions may differ in regard 
to what constitutes "aid and comfort.'' During the late 
civil war, two steamers belonging to a steamship com- 
pany had been seized for the rebel service. Subse- 
quently, payment was offered for them to the agent of 
the company, when he was informed by the government 
that acceptance of payment from the rebels would be 
treated as an act of treason against the United States. 
Said Mr. Seward, Secretary of State: "It is treason for 
any person to give aid and comfort to public enemies. 
To sell vessels to them which it is their purpose to use 
as ships of war, is to give them aid and comfort. To 
receive money from them in payment for vessels which 
they have seized for those purposes, would be to attempt 
to convert the unlawful seizure into a sale, and would 
subject the party so offending to the pains and penalties 
of treason, and the government would not hesitate to 
bring the offender to punishment." 2 

In times of rebellion, or civil war, all persons should 



Ex parte Bollman, 4 Cranch, 126. 2 Tiffany, p. 283. 



22'2 THE CONSTITUTION. 3. III. 2. 

exercise great caution in regard to their conduct and 
language, lest they subject themselves to the charge of 
giving aid and comfort to the enemies of their country. 
Actions and words, which, in other circumstances, 
would pass unnoticed, may be productive of great mis- 
chief « when the life of the nation is endangered. All 
good citizens will, therefore, at such times, studiously 
refrain from whatever might bear an unfavorable con- 
struction. 

Conviction of treason requires the testimony of two 
witnesses to the same overt act of treason, or a confes- 
sion in open Court. A private confession passes for 
nothing. 

Aaron Burr, who had been Vice-President of the United 
States, was tried for treason in 1807, and acquitted. 

Clause 2. — The Congress shall have power to declare 
the punishment of treason, but no attainder of treason 
shall work corruption of blood, or forfeiture, except during 
the life of the person attainted. 

Had this clause been omitted from the Constitution, 
Congress would still have had the power to declare what 
punishment should be inflicted on a traitor. It was 
inserted, doubtless, to prevent the barbarities usually 
connected with the punishment of treason, and to limit 
the effects of attainder. According to the English theory 
the judgment itself pronounced upon one who had been 
convicted of treason involved certain consequences in the 
mode of his execution, as well as in regard to his estate. 
The offender was put to death in a cruel manner. His 
bowels were to be taken out while he was yet alive, and 
burned in his presence. His head was cut off, and his 
body divided into quarters. 

The judgment also involved attainder, which worked 
corruption of blood, or forfeiture. There was no judg- 
ment of attainder, but the attainder followed the judg- 
ment, as a matter of course. And this attainder in- 



3. III. 2. THE JUDICIARY — TREASON. 223 

eluded corruption of blood, or forfeiture, as a natural 
consequence. All his property, of every description, 
was forfeited. And not only so, his children could not 
inherit through him from his ancestors. All inheritable 
qualities were destroyed by corruption of blood. In a 
country where real estate was entailed, the children 
were thus made to suffer for the offense of the parent. 
If the property of the traitor himself were confiscated 
to the government, there would be no hardship to the 
children; for the heirs have no right to the estate while 
the ancestor lives. But if the blood is corrupted so as 
to cut off the connection between his children and his 
ancestors, and prevent any inheritance descending to 
the former from the latter after his death, the children 
would suffer. 

Our Constitution mitigates the severity of this pun- 
ishment. It provides that the offender himself shall 
bear all the punishment. There shall be no corruption 
of blood except during the life of the party attainted. 
As Mr. Madison says, "The Convention have restrained 
Congress from extending the consequences of guilt be- 
yond the person of its author." 1 If there should be any 
attainder in the punishment of treason, it must not be 
allowed to work corruption of blood after the death of 
the traitor. The corruption of blood must then cease, 
and there can be no new forfeiture. It does not mean, 
as some have supposed, that if the property of the 
traitor has been confiscated, it must be restored to his 
heirs at his death. This would involve the absurdity 
of forbidding the taking away, except for the short 
period between sentence and execution, the property 
of one who had been guilty of the highest offense 
known to society, while minor offenses are often pun- 
ished with heavy fines. 

The attainder spoken of in this clause must be that 



1 Federalist, No. 43. 



224 THE CONSTITUTION. 3. III. 2. 

connected with the judgment pronounced by a Court, 
and not a legislative attainder. For we have already 
seen that Congress is forbidden, as also the States, from 
passing any bill of attainder. Congress might provide 
for a judicial attainder in the case of treason, but the 
effects of this attainder must be limited to the life of 
the offender. 

By act of April, 1790, Congress provided that treason 
should be punished with death by hanging. In 1862 
(July 17th), an act of Congress declared that the traitor 
should suffer .death, and his slaves should be made free; 
or, at the discretion of the Court, he should be impris- 
oned for not less than five years, and fined not less than 
ten thousand dollars, and all his slaves be made free; the 
fine to be levied on any of his property, real or personal, 
excluding slaves. This act was accompanied by a joint 
resolution, providing that no punishment under the act 
should be so construed as to work a forfeiture of real 
estate of the offender beyond his natural life. This 
resolution was passed because the President regarded 
the clause of the Constitution now under consideration 
as forbidding the forfeiture of real property except 
during the life of the offender. 

The act of 1790, referred to above, provides for pun- 
ishing a variety of offenses besides treason. Some of 
these were to be punished with death, but most of 
them with fine and imprisonment; the fines ranging 
from one. hundred to five thousand dollars. Section 24 
of the act provides that " no conviction or judgment 
for any of the offenses aforesaid shall work corruption 
of blood or any forfeiture of estate." The language is, 
that no conviction or judgment shall work any forfeiture 
of estate. To interpret it as the President in 1862 in- 
terpreted the clause of the Constitution relating to the 
punishment of treason, would be to make it contradict 
the other sections of the same act, which prescribe' 
punishments by fines, i. e., by the forfeiture of estate. 



4. I. THE JUDICIARY— FORFEITURE. 225 

The meaning is obviously this : The offenses mentioned 
are to be punished, some with death, some with fines 
and imprisonment; but no conviction or judgment, as 
such, or by its own force, is to work corruption of blood, 
or any forfeiture. The offender must give up so much 
of his estate as is needed to pay the fine imposed; but, 
that being done, there is to be no loss of additional 
property, in the way of forfeiture, as a consequence of 
conviction or judgment. Had Congress made the pun- 
ishment of treason to be death and the absolute for- 
feiture of all the estate of the traitor, they would not 
have gone beyond the authority conferred on them by 
the Constitution. They preferred not to go to the limit 
assigned them. They enacted that attainder of treason 
should not work any corruption of blood or forfeiture. 
But at the same time they made an absolute confis- 
cation of property for offenses much less heinous than 
treason. 1 

As treason is a crime against sovereignty, a violation 
of one's allegiance, there can be no treason against a 
particular State. 2 If a State, by its Courts, punishes 
treason, it must be not as treason against itself, but as 
treason against the Union; and in this view the pro- 
priety of that State legislation which affixes to it par- 
ticular penalties is doubtful. 3 

ARTICLE IV. 

Section 1. — Full faith and credit shall be given in each 
State to the public acts, records, and judicial proceedings 
of every other State. And the Congress may, by general 
laws, prescribe the manner in which such acts, records, and 
proceedings shall be proved, and the effect thereof. 

1 For views similar to those here advocated, see Story, Duer, 
Farrar, Tiffany, Mansfield, and others. For the opposite view, see 
Yeaman, appendix. 

2 Elliot's Debates, V, 449. 3 Jameson, p. 56. 



226 THE CONSTITUTION. 4. II. 1. 

'•Full faith and credit" means that credit which the 
State itself gives to the acts, etc., when proven. 

" The public acts " are the legislative acts, the enacted 
laws of a State. 

; - Records " are the registration of deeds, of wills, legis- 
lative journals, etc. 

" Judicial proceedings " are the proceedings, judg- 
ments, orders, etc., of courts. 

Whenever the laws and acts of one nation come into 
examination in any forensic controversy in another 
nation, they must be proved like other facts. The 
Constitution provides that this shall not be necessary 
as between the different States of the Union; that the 
judgments, etc., of one State need not be re-examined 
in another. But the manner in which the acts and 
judgments shall be authenticated, and what their effect 
shall be, is to be left for Congress to declare. 

In 1790, Congress enacted that the acts of the legis- 
lature of a State shall be authenticated by its seal. 
And that the records of a Court should be proved by 
the attestation of the clerk and the seal of the Court 
annexed (if there be one), with the certificate of the 
judge. It was provided, also, that the records thus 
authenticated should have such faith and credit in 
the Courts of other States as they have in the Courts 
of the State from which they are taken. 

Sec. 2, Clause 1. — The citizens of each State shall be 
entitled to all privileges and immunities of eitizem in the 
several States. 

Though the word citizen is repeatedly used in the 
Constitution, it is nowhere defined in the original in- 
strument. But the Fourteenth Amendment says, "All 
persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the 
United States, and of the State wherein they reside/' 
Prior to the abolition of slavery, only free inhabitants 



4. II. 1. PRIVILEGES OF CITIZENS. 227 

born in the United States, or naturalized under the 
laws of Congress, would have been considered citizens. 
Every citizen of the United States is a citizen of the 
State where he resides, and every citizen of a State is 
a citizen of the United States. One may be a citizen 
of the United States and not a citizen of any particu- 
lar State, because his residence may be, not in a State, 
but in a Territory, or in the District of Columbia. But 
whenever he becomes a resident of a State he becomes 
a citizen of it also. 

This clause of the Constitution provides that a citi- 
zen of one State on removing to another shall enjoy all 
the rights and privileges of the citizens of that State. 
But he can not claim any which were peculiar to the 
State he has left. He can not carry the local laws of 
one State with him when he removes to another. 

This clause also provides that the person and prop- 
erty of a citizen of one State shall be secure in every 
other State. No other part of the Constitution has 
been so frequently or flagrantly violated as this. In- 
deed, until 1866, no law had been enacted by Congress 
for carrying its provisions into effect. Early in that 
year a bill was passed, entitled " An Act to protect all 
persons in the United States in their civil rights, and 
furnish the means of their vindication." It was vetoed 
by President Johnson, but receiving the requisite two- 
thirds vote of each House became a law, April 6th, 
1866. It is known as the Civil Rights Bill. It de- 
clares, that all persons born in the United States, 
and not subject to any foreign power, excluding In- 
dians not taxed, are citizens of the United States; and 
all such citizens, of every race and color, without regard 
to any previous condition of slavery or involuntary 
servitude, shall have the same right, in every State or 
Territory in the United States, to make and enforce 
contracts, to sue, be parties, and give evidence; to in- 
herit, purchase, lease, sell, hold, and convey real and 



228 THE CONSTITUTION. 4. II. 1. 

personal property ; and to full and equal benefit of all 
laws and proceedings for the security of person and 
property. 

This act of Congress is. obviously enough, in conflict 
with the language of Judge Taney in the Dred' Scott 
case, that "a free negro of the African race whose an- 
cestors were brought to this country and sold as 
slaves, is not a citizen in the meaning of the Constitu- 
tion." But, as has been already stated, it has been 
maintained by other members of the Supreme Court 
that this point was not before the Court; and therefore 
the language above quoted is not to be regarded as the 
decision of that body. 

The study of our governmental history shows that the 
emancipation of a slave was exactly equivalent to the 
naturalization of an alien or foreigner. As naturaliza- 
tion removed the disqualification of the alien, emanci- 
pation removed that of the slave. This was the de- 
cision of the Supreme Court of North Carolina, in 182 . 
as delivered by Judge Gaston, and it was re-affirmed by 
the same Court in 1S- V 

That the language of Judge Taney in the same trial, 
to the effect that "free negroes were not regarded in 
any State as citizens at the time of the Declaration of 
Independence, and the formation of the Constitution/ 5 
is not in accordance with the teachings of history, two 
facts will suffice to show. At the time of the ratifica- 
tion of the Articles of Confederation, all free, native- 
born inhabitants of the States of New Hampshire. 1 
sachusetts, Xew York, Xew Jersey, and Xorth Carolina, 
though descended from African slaves, were not only 
citizens of those States, but such of them as had the 
other necessary qualifications, possessed :he franchise 
of electors on equal terms with other citizens. 1 The 
other fact is this. On the twenty-fifth of June, 1778. 



1 Judge Curtis, in Scott n. Sandford. 



4. II. 2. WHO ARE CITIZENS. 229 

when the Articles of Confederation were under discus- 
sion in Congress, a motion was made that the word 
''white" should be inserted between the words "free" 
and "inhabitants" in the fourth article. Two States 
voted for the amendment, eight voted against it, and 
the vote of one State was divided. 1 This fourth article 
corresponds to the clause of the Constitution which we 
are now considering, It reads : " The free inhabitants 
of each of these States, paupers, vagabonds, and fugi- 
tives from justice excepted, shall be entitled to all 
privileges and immunities of free citizens in the sev- 
eral States." 

The first section of the Fourteenth Amendment to the 
Constitution which was proposed by Congress, June 
16th, 1866, and having been ratified by three-fourths of 
the States, was declared to be a part of the Constitution, 
July 28th, 1868, is as follows : All persons born or nat- 
uralized in the United States, and subject to the juris- 
diction thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or 
immunities of citizens of the United States; nor shall 
any State deprive any person of life, liberty, or prop- 
erty, without due process of law, nor deny to any per- 
son within its jurisdiction the equal protection of the 
law. 

Clause 2. — A person charged in any State with trea- 
son, felony, or other crime, icho shall flee from justice, 
and be found in another State, shall, on demand of the 
executive authority of the State from which he fled, be de- 
livered up, to be removed to the State having jurisdiction 
of the crime. 

A State has no authority beyond its own limits. If 
a criminal should escape from one State to another, the 



Jour. Cont. Cong., IV, 272. 



230 



THE CONSTITUTION. 4. II. 2. 



former could not arrest him because he is beyond her 
boundaries, and the latter could not punish him for 
offenses committed beyond her jurisdiction. It was 
necessary that a power whose authority extended over 
the whole country should make provision for the ar- 
rest and punishment of fugitives from justice. 

Before any law had been enacted by Congress to carry 
into effect this clause of the Constitution, the Governor 
of Pennsylvania made a requisition upon the Governor 
of Virginia to deliver up an escaping criminal. The 
requisition was refused by the latter on the ground that 
the clause gave him no authority to deliver up the fu- 
gitive. The case was referred by the Governor of Penn- 
sylvania to the President, and b} T him laid before Con- 
gress. In consequence, the act of 1793 was enacted. 
This act provides that the demand be made on the 
executive authority of the State to which the fugitive 
has fled. Accompanying the demand should be a copy 
of the indictment found, or an affidavit made before a 
magistrate, and certified as authentic by the Governor 
making the demand. The arrest is then made by the 
order of the Governor of the State to which the crim- 
inal has fled, and the fugitive is delivered to the agent 
of the former. All the expenses must be paid by the 
State from which the escape was made. The act ap- 
plies to the Territories as well as to the States. 

A fugitive from justice may be arrested and detained 
prior to the demand by the Governor. The executive 
upon whom the demand is made can not go behind the 
demand and accompanying charge of the Governor de- 
manding, to determine whether, by the laws of his own 
State, the offense charged is a crime. 

The giving up by one nation of a fugitive from justice 
escaping from another nation, is called extradition. No 
nation can demand of another the surrender of a crim- 
inal except in consequence of express treaty stipula- 
tions. 



4. II. 3. FUGITIVES FROM SERVICE. 231 

Clause 3.— iVb person held to service or labor in one 
State, under the laws thereof, escaping into another, shall, 
in consequence of any laic or regulation therein, be dis- 
charged from such service or labor, but shall be delivered 
up on claim of the party to whom such service or labor 
may be due. 

The act of February 12th, 1793, was passed to carry 
into effect this clause as well as the preceding one. A 
"person held to service or labor" might be a slave or 
an apprentice. This clause, and that part of the act of 
Congress relating to fugitives from labor, had special 
reference to slaves, though the word slave does not occur 
in the Constitution. The law of 1793 was amended in 
1850, and made still more objectionable to the friends 
of freedom. The commissioners, before whom alleged 
fugitives were to be taken, might order any citizens to 
assist in returning fugitive slaves; and any i^erson 
hindering such return could be fined one thousand dol- 
lars and imprisoned six months, and might forfeit, in 
addition, one thousand dollars to the owner for each fugi- 
tive so lost. The commissioner was to have a fee of five 
dollars if the fugitive was not returned to the claimant, 
and ten dollars if he was returned. The harsh features 
of this law of 1850, with the repeal of the Missouri 
Compromise, and the Dred Scott decision, had much to 
do in directing public attention to the evils of slavery, 
and in preparing the people to put down the rebellion 
of 1861. 

The law of 1850, and those sections of the law of 1793, 
which related to fugitive slaves, were repealed June 
k)th, 1864. On the first of February, 1865, Congress 
proposed an Amendment to the Constitution, abolishing 
slavery throughout the United States. On the eight- 
eenth of December, of the same year, this was declared 
to have been ratified by the legislatures of three -fourths 
of the States. It is the Thirteenth Amendment. Thus 



232 THE CONSTITUTION. 4. III. 

was the question of slavery at last settled — a question 
which has caused more disturbance in our government 
than all other questions combined. 

Sec. 3, Clause 1. — New States may be admitted by the 
Congress into this Union; but no new State shall be formed 
or erected within the jurisdiction of any other State ; nor 
any State be formed by the junction of two or more States, 
or parts of States, without the consent of the legislatures 
of the States concerned as well as of the Congress. 

Clause 2. — The Congress shall have power to dispose of 
and .make all needful rules and regulations respecting the 
territory or other property belonging to the United States ; 
and nothing in this Constitution shall be so construed as to 
prejudice any claims of the United States, or of any par- 
ticular State. 

The Articles of Confederation made no general pro- 
vision for the admission of new States. Canada might 
come into the Union on acceding to the Articles of 
Confederation and joining in the measures of the United 
States; but no other colony could be admitted unless by 
the agreement of nine States. Vermont made applica- 
tion for admission in 1781 ; but the application was not 
granted, as Congress was unwilling to offend the States 
of New York and New Hampshire, both of which claimed 
it as within their jurisdiction, and opposed its admis- 
sion into the Union. 1 

From the adoption of the Constitution to the present 
time twenty-five new States have been admitted : the 
first, Vermont, in 1791; the last, Colorado, in 1876. 
No State has been formed by the junction of two or 
more States, or parts of States, while four have been 
created within the jurisdiction of other States : Ver- 
mont from New York (claimed also by New Hampshire), 



1 Pitkin's Hist., II, p. 314. 



4. III. NEW STATES AND TERRITORIES. 233 

Kentucky from Virginia, Maine from Massachusetts, and 
West Virginia from Virginia. 

The language of the Constitution is, new States may 
be admitted into the Union. It is not imperative upon 
Congress to admit them. Nor can Congress compel the 
people of a Territory to become a State. For obvious 
reasons, however, this has been regarded as desirable, 
and as such has been eagerly sought by the Territories. 

After the Colonies threw off the yoke of Great Britain, 
the unsettled territory within the limits of the United 
States became a subject of grave concern. Some of the 
States claimed that those lands were within their char- 
tered limits, and that to them belonged both soil and 
jurisdiction. Others insisted that, as the war had been 
carried on under a common government, and for the 
common interest, this territory should be considered as 
the common property of the nation. 

On the sixth of September, 1780, Congress pressed 
upon the States having claims to the Western country, 
a surrender of a portion of their territorial claims, as 
they could not be preserved entire without endangering 
the stability of the general Confederacy. A month later 
(October 10th) Congress resolved, that the unappro- 
priated lands that may be ceded or relinquished to the 
United States by any particular State, pursuant to the 
recommendation of Congress of September 6th, should 
be disposed of for the common benefit of the United 
States, and be settled and formed into distinct repub- 
lican States. 

In accordance with this recommendation cessions were 
made by different States, as follows : New York, March 
1st, 1781; Virginia, March 1st, 1784; Massachusetts, 
April 19th, 1785: Connecticut, September 14th, 1786; 
South Carolina, August 8th, 1787. These were made 
before the formation of the Constitution. North Caro- 
lina and Georgia had not relinquished their claims 
when that instrument was adopted, but they did so 
C. G. 20. 



234 THE CONSTITUTION. 4. III. 

afterward: North Carolina, February 25th, 1790, and 
Georgia, April 24th, 1802. The language of Clause 2, 
that the claims of any particular State should not be 
prejudiced, had reference to the claims of the last two 
States named above. 

The Constitution confers on Congress full power to 
make laws respecting the territory belonging to the 
nation and not yet formed into States. Without a 
specific grant to that effect in the Constitution, Congress 
would doubtless have • had this power. The first law, 
indeed, organizing a Territory, was enacted before the 
Constitution w T as adopted — the Ordinance for the Govern- 
ment of the Territory of the United States North-west 
of the River Ohio, July 13th, 1787. 

The framers of the Constitution introduced these two 
clauses of Section 3, into the Constitution, that the 
resolution of Congress, of the tenth of October, 1780, 
might be carried into effect; and they had primary 
reference to the territory then claimed by different 
States. But the language is broad enough to cover 
whatever territory the United States might subse- 
quently acquire. The Constitution nowhere in express 
terms authorizes the general government to enlarge the 
national domain by purchase, by conquest, by annexa- 
tion, or in any other mode ; but this is one of the powers 
incident to national sovereignty, and as such it has been 
repeatedly exercised by the United States. Louisiana 
was purchased under the administration of Mr. Jeffer- 
son; Florida, under that of Mr. Monroe; Texas was 
annexed under the presidency of Mr. Tyler; and the 
territory which was obtained from Mexico was con- 
quered under Mr. Polk. All these gentlemen were 
strenuous advocates in theory of the doctrine that our 
general government is one of limited and enumerated 
powers. 

There is no doubt that the United States, like other 
nations, can acquire territory and govern it. Though 



4. III. NEW STATES AND TERRITORIES. 235 

the Articles of Confederation said nothing about the 
government of territory, Congress exercised this power, 
as we have seen, and passed the celebrated ordinance of 
1787, while the Convention that framed the Constitution 
was in session. After the Constitution was adopted 
Congress did not deem it necessary to re-enact that 
ordinance, but merely adapted it to the new Constitu- 
tion, by providing that the territorial officers who, be- 
fore, were appointed by Congress, should now be ap- 
pointed by the President and Senate, and should report 
to the President instead of to Congress. This act, which 
was passed August 7th, 1789, shows that the members 
of that first Congress under the Constitution regarded 
the ordinance as still binding. 

This ordinance, for the government of the North-west 
Territory, was for a long period the model after which 
other Territories were organized. If the territory was 
at the South, that clause of the ordinance w r hich pro- 
hibited slavery was excepted; if the territory was at 
the North, the government was to be in all respects 
similar to that provided by the ordinance of 1787. 

Including the act of August 7th, 1789, eight separate 
acts were passed, extending over a period of over sixty 
years, each one prohibiting slavery in the Territory 
organized. The power of the general government to 
make all needful rules and regulations for the govern- 
ment of the Territories was not called in question till 
the winter of 1856-7, on the trial of the Dred Scott 
case. In giving the decision of the Court in that case, 
Judge Taney said, among other things which w T ere not 
before the Court, that Congress had no power to pro- 
hibit slavery in a Territory of the United States. 
Even if that question had been before the Court, be- 
ing a political question and not a judicial one, it was 
one over which that department of the government 
had no control. 

In the same opinion the Court held that " the pro- 



236 THE CONSTITUTION. 4. III. 

priety of admitting a new State into the Union is com- 
mitted to the sound discretion of Congress, and that 
the power to acquire territory must rest upon the same 
discretion." The power to govern a Territory was not 
inferred, however, from the clause of the Constitution 
now under consideration, but was regarded as the in- 
evitable consequence of the right to acquire territory, 
which last right, as there is no allusion to it in the 
Constitution, must be a right of general sovereignty. 
Mr. Douglas held that the power of Congress to govern 
the Territories was to be found in the clause authoriz- 
ing the admission of new States; if States may be 
admitted into the Union, Territories may be governed 
so as to fit them to become States. 1 It is admitted, 
then, by all that Congress has the exclusive right to 
govern the Territories ; though the advocates of slavery 
would make that right, as they would all rights, sub- 
ordinate to that institution. Since, however, slavery 
itself has been abolished by the Thirteenth Amendment, 
this only limitation is removed. 2 ^ 

As soon as new territory is acquired by the United 
States, the right of sovereignty vests in the nation. 
The authority of the nation over such territory is ab- 
solute, except as modified by the treaty with the nation 
from which it was obtained. The people of the Terri- 
tory have no governmental power except as granted 
by Congress. Whenever Congress sees fit, it may or- 
ganize a territorial government. Such a government 



1 Report on Kansas. 

2 The Constitution of the Confederate States provided for the 
acquisition of new territory, and its government by Congress. But 
slavery was recognized and protected, and the inhabitants of other 
States and Territories might take their slaves into every Territory. 
That Constitution provided that other States might be admitted 
into the Confederacy by a vote of two-thirds of the whole House 
of Eepresentatives, and two-thirds of the Senate — the Senate voting 
by States. (Macpherson's History of the Rebellion, 1860-65, p. 99.) 



4. III. NEW STATES AND TERRITORIES. 237 

usually consists of a legislature chosen by the people, 
a Governor appointed by the President and Senate, and 
Judges appointed in the same manner. But the ter- 
ritorial authority, whether legislative, executive, or 
judicial, derives its sanction from the sovereignty of 
the nation. 

According to our governmental system, the people of 
a Territory, while they have civil rights and are en- 
titled to protection, have no power to govern the Ter- 
ritory, that is, to govern themselves, save as it is given 
them by the general government ; and they can not 
in any way participate in the general authority of the 
nation. But whenever a Territory is admitted into the 
Union by Congress, it becomes a State; and as such its 
people are authorized under the Constitution to man- 
age their local affairs, and to participate in the ad- 
ministration of the nation. When a citizen of a State 
goes to reside in a Territory, he leaves behind him his 
political privileges, though not his civil rights. He has 
no longer any voice in the election of President, or of a 
member of Congress. He can not take part in elect- 
ing a Governor of the Territory. 

A Territory is a part of the domain of the United 
States ; it is a part of the United States considered as 
the name of the country, but it is not in the Union, in 
the sense in which a State is. Nor can it come into 
the Union except as it is admitted by Congress. It 
may frame a State constitution, which its people may 
ratify; but that does not constitute it a State. The 
consent of Congress is indispensable to enable it to 
become an integral part of the Union. But when 
admitted, and thus constituted a State, it becomes a 
political corporation for local purposes, and a part of 
the great political organization whose sway extends 
over the whole domain. All our political privileges 
are thus dependent upon our being a part of the peo- 
ple of a State. 



838 thz 4. ::;. 

As a Terr: not compelled to become a S1 

so a S tatc is not compelled to remain a State. If a 
State is a political organization, refuses to con 
itself any longer a member of the great national body, 
and by deliberate act withdraws from the Union, what 
then? The soil is still a part of the domain of the 
United States, and the people who dwell upon i: 
still snbject to the nation. They have simply given 
np their privilege of managing their own local affairs, 
and all right to participate in the government of the 
nation They have no more political authority than 
the people of a Territory before its admission into 
the Union, and they can have none till s con- 

fers it upon them. 

There h no such political entity tno governmental 

system as a State out of the Union. The mom with- 

drawal takes place, the existence of the State as such 
cease- ft is no longer a State Kits people can main- 
tain their independence by the sword, they may frame 

_ eminent and call it what they pi tse But wh 
successful or unsuccessful, it is no longer one of the 
United States of America. It is no longer a State in 
the American Union. If it fails to g ndepend- 

ence T it is not in the Union but i 

There has not been entire uniformity in the mode 
of admitting new Stales but the folL . is the most 
usual, and may be considered the regular, mode. When 

I rritory ha? a sufficient population, a pe 
to Congress, asking for leave to form - 
tion, and to be admitted into the Union. C . 
passe- - called "an enabli . _ the 

inhabitants to form a constitution. A Convention 
is held for this purpose, and the feion thus 

formed is presented to Congr- eir approval. If 

the proceedings have been regular, and the const itu- 

: r --_ -- ... T .. 



4. IV. NEW STATES AND TERRITORIES. 239 

tion is free from objection. Congress passes an act ad- 
mitting the new State into the Union "on an equal 
footing with the original States, in all respects what- 
ever." The case of Louisiana may be taken as an 
example. In March, 1804, the country purchased of 
France, under the name of Louisiana, was erected by 
Congress into two Territories — the District of Louisi- 
ana, and the Territory of Orleans. In February, 1811, 
an act was passed "to enable the people of the Terri- 
tory of Orleans to form a constitution and State gov- 
ernment, etc." April 8th, 1812, an act was passed, to 
take effect April 30th, "for the admission of the State 
of Louisiana into the L T nion, and to extend the laws 
of the United States to the said State." 

This power to admit new States into the Union, and 
to make them equal participants with the older States 
in the government is "one of the new principles intro- 
duced into our system, and is, perhaps, the most anoma- 
lous, and most influential upon its future destiny. All 
the nations of antiquity held immense provinces, which 
constituted a part of the State, for purposes of revenue 
and armies, but were never admitted upon terms of 
equality, and whose inhabitants were never citizens. The 
idea of constituting a government, to be increased as to 
the source of law — by its own colonization, or by recruits 
from abroad, is wholly new. v x 

Section 4. — The United States shall guaranty to every 
State in this Union a republican form of government, and 
shall protect each of them against invasion ; and, on ap- 
plication of the legislature, or of the Executive (when the 
legislature can not be convened) against domestic violence. 

This clause makes a republican government necessary 
in every State. It could not be obligatory upon the 
United States to guaranty it to the individual States, 



Mansfield's Pol. Manual, p. 192. 



240 the coxstitut: 4. : .-. 

unless it was incumbent on them to have such a gov- 
ernment. It is equivalent to saving that "no othei 
shall be permitted to be established.^ * The clause pre- 
scribes a republican government for all the States, pro- 
tection against hostile invasion, and, on request, against 
domestic violence. Every rate must have a repub- 
lican government, and if, at any time, a State is des- 
titute of one, the general government is bound to 
provide it.* 

This is the only instance in the Constitution where 
the government has a duty enjoined upon it, while the 
particular department is not mentioned- Here the ob- 
ligation is from the United States to the States; but 
whether to be exercised by the President or by Con- 
gress is one of the questions that has grown out of the 
reconstruction measures. 3 In the case of Rhode Island, 
the Supreme Court held that, "It rests with Cons:: ess 
to decide what government is the established one in a 
7 :r. as the United States guaranty to each State 
a republican government, Congress must necessarily de- 
cide what government is established before it can de- 
termine whether it is republican or not. And when 
the Senators and Representatives of a State re admit- 
ted into the councils of the Union, the authority of the 
government under which they are appointed, as well as 
its republican character, is recognized by the proper 
constitutional authority. And its decision is binding 
on every other department of the government, and 
could not be questioned in a judicial tribunal 

The Constitution does not define a republican govern- 
ment. The national government may be assumed to 
be republican in form, and thus a model for the States. 
Mr. Madison says: "We may define a republic to be a 
government which derives all its powers directly or in- 



1 Curtis, Hist, of the Const., II, p. 472. 2 Fartar, p. 221. 
a Brahal, p. 242. ? 7Howari 



4. IV. THE STATES MUST BE REPUBLICAN. 241 

directly from the great body of the people, and is ad- 
ministered by persons holding their offices during pleas- 
ure, for a limited period, or during good behavior." 1 
" The principle of republicanism is the equal right of 
the people, the citizens, all the members of the body 
politic. In theory it is the government of public 
opinion. * * The fundamental principles of right 
and justice for the government, the representative 
character of the governors, and their practical respon- 
sibleness to the governed, are the essentials of republi- 
canism." 2 

The Constitution indirectly requires various provis- 
ions in the State governments by enjoining duties. 
The Senators of the United States are to be elected by 
the State legislatures. Members of the House of Rep- 
resentatives are to be elected by the same electors as 
vote for the members of the most numerous branch of 
the State legislature. The Executive of the States are 
often referred to. The Judges are to take an oath to 
obey the Constitution of the United States. Thus, the 
States must have the three great departments of gov- 
ernment — the legislative, executive, and judicial. The 
legislature must be in two branches, and the most nu- 
merous branch must be elected by the people. The 
States are supposed to have written constitutions (Ar- 
ticle VI). 

It would have been the duty of the United States to 
protect each State against invasion and domestic vio- 
lence had not this special provision been inserted, for 
one of the ends for which the Constitution was ordained 
was to provide for the common defense. In the Con- 
vention that framed the Constitution, "Mr. Rutledge 
thought it unnecessary to insert any guaranty. No 
doubt could be entertained but that Congress had the 
authority, if they had the means, to co-operate with 



1 Federalist, No. 39. 2 Farrar, p. 223. 
C. G. 21. 



242 THE CONSTITUTION. 4. TV. 

any State in subduing a rebellion. It was and would 
be involved in the nature of the thing."' 3 

"It may well be doubted if any dereliction of duty 
on the part of the officers of the State, whether legisla- 
tive or executive, could afford an adequate excuse for 
the general government in suffering the regular admin- 
istration of the authorized republican government of a 
State to be overthrown and destroyed, or otherwise sub- 
stantially interfered with by domestic violence, under 
circumstances that obviously required their authorita- 
tive interposition for the preservation of the peace and 
good order of the community." 2 

The clause of the Constitution now under considera- 
tion has been brought prominently into notice in the 
recent secession and subsequent reconstruction of eleven 
States of the Union. In the six months commencing 
with December, I860, ordinances of secession, so called, 
were passed by conventions in South Carolina. Missis- 
sippi, Florida, Alabama, Georgia, Louisiana. Texas, 
Arkansas, Virginia, Tennessee, and North Carolina, 
These conventions were entirely revolutionary and 
depended for their justification upon success. But suc- 
cess was not theirs. Their armies were defeated, after 
an immense expenditure of blood and treasure. The 
doctrine of the right of secession, or, which is the 
same thing, of absolute State sovereignty, which they 
had determined to submit to the arbitrament of the 
sword, had been proved to be utterly untenable, and 
their States had been placed in positions entirely ab- 
normal. 

"Here, then, were brought again into relations of 
practical subjection to the Union certain integral pop- 
ulations, which had once been Constitutional States, 
but which, having, by truancy from Constitutional 
courses, lost something necessary to that character, 



1 Elliot's Debates, V, p. 333. 2 Farrar. p. 229. 



4. IV. RECONSTRUCTION OF STATES. 243 

were such no longer — were, indeed, little more than 
'geographical denominations;' communities, which, al- 
though as much in the Union, territorially, as ever, 
were properly neither Constitutional States nor Con- 
stitutional Territories, but States which had, sua sponte, 
for purposes of ambition, divested themselves of their 
Constitutional apparel, and donned that of treason and 
rebellion, and so had forfeited their prerogative as 
States to participate in governing the Union, and been 
relegated to a condition analogous to that of Territories 
— a condition in which they belonged to the Union, but 
had rightfully no governing function whatever, local or 
general." * 

The work of reconstruction had commenced in some 
of the States before the close of the war. A large ma- 
jority of the legislature of Virginia adhered to the re- 
bellion, but Congress recognized as the lawful legisla- 
ture a minority who assembled at Wheeling. This 
body sent Senators to Congress, and gave consent to the 
formation of the new State of West Virginia. In Mis- 
souri the governor and the majority of the legislature 
adhered to the rebellion, and passed an ordinance of 
secession. The State was admitted as a member of the 
'' Confederate States," and continued to be represented 
in the Confederate Congress till the overthrow of the 
Confederacy. But a Convention, which had been called 
by the legislature of Missouri in 1860, having refused 
to pass an act of secession, was reconvened in July, 
1861. This body took upon itself the government of the 
State, and was recognized as the lawful authority by the 
general government. 

In December, 1863, President Lincoln issued a procla- 
mation to the effect, that when one-tenth of the quali- 
fied voters of a State, having taken the required oath, 
should re-establish the State government, republican in 



Jameson, p. 244. 



244 THE CONSTITUTION. 4. IV, 

form and in conformity with the oath, it should be 
recognized as the true government of the State, and 
should receive the benefits of the Constitutional guar- 
anty embodied in this clause which we are now con- 
sidering. In pursuance of this proclamation, Louisiana 
and Arkansas provided themselves with loyal State 
governments. But these States having been recon- 
structed through the military power, the mode adopted 
was not entirely satisfactory to Congress, and the States 
were not allowed representation in that body. 

The first State that was fully restored to her former 
relations to the Union was Tennessee. On the 24th 
of July. 1366, Congress passed a joint resolution, "That 
the State of Tennessee is hereby restored to her former, 
proper, practical relations to the Union, and is again en- 
titled to be represented by Senators and Representatives 
in Congress.'' In the preamble to this resolution, it is 
recited, that the inhabitants of the State, having been 
by act of Congress declared to be in a state of insurrec- 
tion, the State government can be restored to its former 
political relations in the Union only by the consent 
of the law-making power; that the people by a large 
vote, had adopted and ratified a constitution, abolish- 
ing: slavery, and declaring void all ordinances and laws 
of secession, and debts contracted under the same : and 
had organized a State government under the new consti- 
tution, which had ratified the Thirteenth and Fourteenth 
Amendments to the Constitution of the United States. 

In March. 1867. an ;i Act to provide for the more 
efficient government of the rebel States "' was passed, 
and, later in the same month, a supplementary act 
for the same purpose. This act divided these States 
into five military districts, each to be under the com- 
mand of a military officer, who should be charged with 
the duty of protecting the inhabitants in person and 
property, of suppressing all disorder, and punishing 
crime. Criminals might be tried by the local civil 



4. IV. THE RECONSTRUCTION OF STATES. 245 

tribunals, or, at the discretion of the commanding 
general, by military commissions. The inhabitants 
were to be registered, and an election held for delegates 
to a Convention in each State for the formation of a 
constitution. When such constitution should be ap- 
proved by Congress, and the legislature elected under 
its provisions had ratified the Fourteenth Amendment, 
the State should become entitled to representation in 
Congress. 

Under this act Arkansas was admitted to representa- 
tion in Congress as one of the States of the Union, 
June 22d, 1868, having framed and adopted a constitu- 
tion of State government, which Congress decided to be 
republican, and her legislature having ratified the Four- 
teenth Amendment. Three days later an act was 
passed providing for the conditional admission to repre- 
sentation of North Carolina, South Carolina, Louisiana, 
Georgia, Alabama, and Florida. These had framed and 
adopted constitutions of republican government, and 
were to be fulty admitted as States of the Union when 
they should have ratified the Fourteenth Amendment. 
In all the above cases, including Arkansas, the admis- 
sion was upon one or more fundamental conditions 
prescribed by Congress. All the six States made the 
required ratification, and were admitted without further 
legislation by Congress, except Georgia. Virginia was 
restored by act of Congress of January 26th, 1870; Mis- 
sissippi by that of February 23d; Texas by that of 
March 30th; and Georgia by that of July 15th, of the 
same year. 

The action of the general government has fully set- 
tled this, that if a State takes the attitude of hostility 
to the nation, and refuses to acknowledge the supremacy 
of the Constitution of the United States, it forfeits its 
right to all participation in the government of the 
Union, and can be restored to its former position only 
by the distinct and formal action of the law-making 



246 THE CONSTITUTION. 4. TV. 

power of the United States. The doctrine, that the 
people of a State may take up arms against the nation, 
putting forth their whole energies and using all their 
resources to destroy the national life, and yet the mo- 
ment they are subdued, claim the right to send Sena- 
tors and Representatives to Congress, is, in the high- 
est degree, preposterous. Yet this doctrine was gravely 
maintained in the Minority Report of the Joint Con- 
gressional Committee on Reconstruction, in June, 1866. 
And many worthy people seemed to be involved in 
inextricable confusion as to the relation of such States 
to the Union. 

- The argument assumes this logical form: A State is 
either in the Union or out of the Union. If in the 
Union, her. people owe allegiance on the one hand, and 
are entitled to representation on the other. If out of the 
Union, they do not owe allegiance, nor. are they entitled 
to. representation. The inference drawn from this is, 
that if the people of a State are not allowed representa- 
tion in Congress there rests upon them no obligation of 
obedience ; and that whenever they acknowledge the ob- 
ligation of obedience, representation is theirs as a mat- 
ter of right. 

The fallacy lies here. The terms in the Union and out 
of the Union are not necessarily contradictory. A given 
district of the United States may be in one sense in the 
Union, and in another sense out of the Union at the 
same time. That portion of our country called Ohio 
was a part of the national domain in 1800, and all the 
people living there were subject to the general govern- 
ment ; in that sense the district and the people were in 
the Union. But the people had no participation in the 
general government, they had no Senators or Represent- 
atives in Congress, they cast no votes for President in 
the election of that year; in this sense they were not in 
the Union. Two or three years later Ohio was admitted 
into the Union, and then she was in the Union in both 



Art. 5. AMENDMENTS. 24,7 

the senses stated. During the rebellion South Carolina 
was not in the Union as Ohio was ; she was not out of 
the Union as Mexico was. She had forfeited her right 
to a share in the government, but she was under the 
authority of the United States. 

Whatever forms of language may be used to describe 
the attitude of portions of the country in a state of in- 
surrection, and their relation to the United States, we 
maj T be sure that they will not be admitted to a repre- 
sentation in the councils of the nation till, in the judg- 
ment of Congress, such admission will not conflict with 
the well-being of the country. No claim to be admitted, 
based on the ground that a State once a State is always 
a State, will have the slightest influence with those 
who shall, for the time being, be entrusted with the 
legislative power of the nation, no matter what may be 
their theoretic opinions as to the rights of States. The 
war was commenced in the interest of State sovereignty, 
and the sword has settled the question. 1 Let us hope 
that many years ma}' elapse before the general govern- 
ment shall again be under the necessity of exercising 
the power with which it is clothed by this Section of 
the Constitution. 

article v. 

AMENDMENTS. 

The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Con- 
stitution, or, on the application of the legislatures of two- 
thirds of the several States, shall call a convention for pro- 
posing Amendments, which, in either case, shall be valid to 
all intents and purposes as part of this Constitution, when 



1 "It can not be too often repeated that the war was not primarily 
between freedom and slavery. It was the war of the nation and the 
Confederacy." Mnlford, p. 340. 



148 THE CONSTITUTION. Art. 5. 

ratified by the legislatures of three-fourths of the several 
States, or by conventions in three-fourths thereof, as the 
one or the other mode of ratification may be proposed by 
the Congress : Provided, that no Amendment which may be 
made -prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses 
in the ninth section of the first article; and that no State, 
without its consent, shall be deprived of its equal suffrage 
in the Senate. 

Definite provision is here made for amending the 
Constitution. The Articles of Confederation could not 
be altered except with the assent of all the States. The 
present Constitution, however, can be amended with 
the assent of three-fourths. 

There are two modes of proposing Amendments, and 
two modes of ratifying them. Congress itself may- 
propose an Amendment whenever two-thirds of both 
Houses deem it necessary ; or, if two thirds of the State 
legislatures request it, Congress must call a Convention 
for proposing Amendments. Amendments thus pro- 
posed become valid when ratified by the legislatures 
of three-fourths of the States, or by conventions in 
three-fourths thereof. 

Nineteen Amendments have been proposed since the 
adoption of the Constitution; all of them by the first 
mode. Two-thirds of the legislatures have never yet 
applied to Congress to call a Convention for this pur- 
pose. Fifteen of the Amendments proposed have been 
ratified; and these ratifications have all been by the 
first mode — by the legislatures of the States, and not 
by conventions. The First Congress, which proposed 
twelve Amendments, adopted this method of ratification, 
and their example has been followed in ever}' other case. 
It is fortunate for the country that a Convention has 
never been called for the purpose of proposing Amend- 
ments. The organic law of a people should be framed 



Art. 5. AMENDMENTS. 249 

with great care and altered with the utmost caution. A 
body of men convened for the purpose of suggesting al- 
terations in the Constitution would be likely to mag- 
nify their office in proposing many Amendments. 

There are three limitations to this power of amend- 
ing the Constitution: First, the clause could not be al- 
tered which prohibited Congress from passing, prior to 
the year 1808, a law prohibiting the importation of 
slaves. Second, the clause prescribing the mode of levy- 
ing a capitation or other direct tax, could not be altered 
prior to the same year, 1808. Third, no State, without 
its consent, could be deprived of its equal suffrage in 
the Senate. 

The first two limitations had reference to slaves, and 
became inoperative in 1808. The third was for the pro- 
tection of the smaller States : to allow them the same 
representation in the Senate as the larger States. This 
provision was added at the very close of the Convention 
that framed the Constitution. Mr. Sherman, of Con- 
necticut, moved that it be added to the article, but Mr. 
Madison opposed it, and it was lost. Mr. Gouverneur 
Morris, of Pennsylvania, subsequently renewed the mo- 
tion, and it was carried on Saturday, September 15th. 
On Monday the Convention adjourned. 

This is the only provision of the Constitution which 
is virtually irrepealable. In 1861 an Amendment was 
proposed by two-thirds of both Houses, as follows: "No 
Amendment shall be made to the Constitution which 
will authorize or give to Congress the power to abolish 
or interfere within any State with the domestic institu- 
tions thereof, including that of persons held to labor or 
service by the laws of said State." Had this Amend- 
ment been ratified, it would have been in terms an irre- 
pealable clause. Whether it would have been so in 
fact it is not necessary now to inquire, as the ratifica- 
tion did not take place. 

The British Constitution may be altered by Parlia- 



250 THE CONSTITUTION. Art. 5. 

ment without any confirmation or ratification by the 
people. Parliament is thus, say? Mr. Fisher, a ' ; Con- 
vention to amend the Constitution, duly appointed, al- 
ways in existence, and always competent to entertain 
proposals for needed alterations, with full authority to 
decide them. * * * It is a remarkable fact that, in 
conservative England, so steadfast in adhering to an- 
cient usage, the power to make changes is always ready 
to act, without question or form or delay, and the or- 
ganic law is thus pliable and responsive to the wishes 
of the rjeople ; whilst in democratic America, innovation 
is guarded against with such jealous care that it is 
doubtful whether the means provided by law for making 
needed changes can ever be employed.'' ■ 

Events show that this language is too strong; for, 
since it was written, in 1862, three Amendments have 
been made to the Constitution. Still it may admit 
of question whether the difficulties in the way of 
amending our organic law are not too great for the best 
good of the nation. These difficulties are forcibly pre- 
sented in the work just quoted from. 

When an Amendment has been proposed by two- 
thirds of both Houses of Congress, is the approval of 
the President necessary? It is only an expression of 
opinion by Congress that a certain Amendment is de- 
sirable, which Article Fifth contemplates, while the final 
decision in regard to it is to be made by other bodies. 
Then, again, a vote of two-thirds is good against the 
President's veto. We should infer, therefore, that the 
approval of the President is not necessary. And the 
practice has been, for the most part, not to submit the 
resolutions to the President for approval. 

The First Congress proposed twelve Amendments. 
Nothing was said of the approval by the President. 2 



1 Fisher's Trial of the Constitution, p. 30. 

2 Annals of Congress I, p. 779. 



Art. 5. AMENDMENTS. 251 

The Amendment of 1794 — the Eleventh— was called 
in question because the President had not approved 
it; but the Supreme Court decided that his approval 
was not necessary. 1 When the Amendment of 1803 — 
the Twelfth — was before the Senate, they voted — 
twenty-three to seven — that it be not submitted. That 
proposed at the second session of the Eleventh Congress 
was not sent to the President for his approval. The 
first instance in which an Amendment proposed by 
Congress was sent to the President for his approval, 
was in March, 1861. The Amendment proposed as to 
slavery in the United States was approved by Presi- 
dent Buchanan. The Amendment of 1865 — the Thir- 
teenth — having been sent to the President through 
inadvertence, the Senate, without a division, decided 
that it should not constitute a precedent, and the 
Secretary of the Senate was instructed not to commu- 
nicate to the House of Representatives the notice of the 
approval. 

The Amendment of 1866 — the Fourteenth— * was not 
submitted to President Johnson for his approval, of 
which he reminds Congress in a message and intimates 
that he would have vetoed it had the opportunity been 
offered. 2 The Fifteenth Amendment — February 27th, 
1869 — was not sent to the President. With this uni- 
formity of action by Congress, and the decision of the 
Supreme Court, we may say that the approval of the 
President is not essential to a resolution of Congress 
proposing Amendments to the Constitution. 

An Amendment becomes valid when ratified by the 
legislatures of three-fourths of the States; that is, it 
becomes a part of the Constitution when the ratifica- 
tion has been made by the last State necessary to 
complete the constitutional number. Thus, the first 
ten Amendments, proposed by the First Congress, Sep- 



3 Dallas, 378. 2 Senate Jour., 39th Cong., 1st Sess., p. 563. 



252 



THE CONSTITUTION. Art. 5. 



tember 25th, 1789, were ratified by New Jersey Novem- 
ber 20th of that year, then by others, till December 15th, 
1791, when the ratification of Virginia took place, mak- 
ing eleven States, the whole number being fourteen. De- 
cember 15th, 1791, is thus considered the date of these 
Amendments. The Eleventh Amendment was declared, 
in a message from the President to Congress, dated Jan- 
uary 8th, 1798, to have been adopted by the requisite 
number of States, and the Amendment bears the date of 
the President's message. Of the adoption of the Twelfth 
Amendment public notice was given by the Secretary 
of State, September 25th, 1804. In 1818, an act was 
passed making it the duty of the Secretary of State, on 
receiving official notice from the States of the adoption 
of an Amendment by the requisite number, to cause the 
Amendment to be published, with his certificate, that 
it has been duly ratified. This act is still in force. 

A question has arisen as to the power of a State to 
withdraw her ratification of an Amendment to the Con- 
stitution. The legislature of New York ratified the 
Fifteenth Amendment, and subsequently voted to with- 
draw the ratification. The same was true of New 
Jersey and Ohio with regard to the Fourteenth Amend- ' 
ment. In the latter case the Secretary of State, after 
reciting the facts of the ratification by various States, 
including New Jersey and Ohio, and of the subsequent 
rejection by these two, proceeds: "I do hereby certify 
that if the resolutions of the legislatures of Ohio and 
New Jersey, ratifying the aforesaid Amendment, are to 
be deemed as remaining of full force and effect, not- 
withstanding the subsequent resolutions of the legis- 
latures of those States, which purport to withdraw the 
consent of said States from such ratification, then the 
aforesaid Amendment has b?en ratified, etc." 

Congress was not satisfied with this conditional 
notice of adoption, and the next day adopted a con- 
current resolution,, declaring the Fourteenth Amend- 



Art 5. AMENDMENTS— RATIFICATION. 253 

ment to be a part of the Constitution, and directing 
the Secretary of State to promulgate it as such. Con- 
gress has thus given its decision that a State can not 
withdraw its consent when once given to a Constitu- 
tional Amendment. 

The correctness of this decision is beyond question. 
The Constitution declares that an Amendment duly 
proposed shall become valid when ratified by three- 
fourths of the legislatures of the several States. When 
a legislature has voted affirmatively on the question 
of ratification, the work of the State is done so far as 
regards that Amendment. That State is counted as in 
favor of it. Had the vote been a negative one, the 
State could not have been counted as in favor; neither 
could it had there been no vote. A State may reject 
an Amendment a hundred times, and then ratify it ; 
the ratification counts just as much as if it had been 
made on the first vote. The Constitution knows noth- 
ing of any action of a State legislature touching a 
proposed Amendment, except its ratification. When- 
ever that comes it is counted. It may have been pre- 
ceded by any number of rejections, and be followed 
by as many; it makes not the slightest difference. 
"Nothing but ratification forecloses the right of action. 
When ratified, all power is expended. Until ratified, 
the right to ratify remains." 1 

Another question has been discussed. In a time of 
rebellion, is a ratification of a proposed Amendment 
by the legislatures of three-fourths of the loyal States 
sufficient to make the Amendment valid? According 
to the views given in commenting upon Sections 3 
and 4, of the previous Article, this question must be 
answered affirmatively. If a State has forfeited her 
right to participate in the ordinary legislation of the 



1 Governor Bramlette to the legislature of Kentucky, quoted by 
Jameson, p. 520. 



254 THE CONSTITUTION. Art. 5. 

nation, if she is deemed unfit, because of the disloyalty 
of her people, to assist in enacting the ordinary laws, 
much less can she claim participation in the higher 
and more sacred work of changing the great organic 
law of the nation. A proposed Amendment to the 
Constitution is no more dependent upon the assent of 
a State holding such relation to the nation, than upon 
that of a Territory. 

But did not Congress direct the recent Amendments 
to be sent for ratification to the disloyal as well as to 
the lo} T al States? This was done, it is true; but this 
does not prove that their ratifications were essential to 
the validity of the Amendments. The explanation of 
the seeming inconsistency of Congress is to be found 
in the peculiar character of these Amendments as 
affecting the seceding States. They all had refer- 
ence to the abolishment of slavery, and to the status 
of the freedmen. Congress made the ratification of 
these Amendments by those States a condition of their 
restoration to the Union. It was for this reason that 
the Amendments were sent to them, and not because 
such ratification was essential to their validity. They 
were all ratified by three-fourths of the loyal States, 
and would be valid without the assent of any of the 
others. The ratification by the disloyal States was 
simply the formal assertion by their legislatures of 
the principles contained in the Amendments, and was 
to that extent an evidence that they might be restored 
with safety to their former condition in the Union. 

The Amendments — fifteen in all — will be made the 
subject of comment in subsequent pages. The dates 
when they were severally proposed and ratified are as 
follows : 

The First Ten Amendments, proposed September 
25th, 1789, ratified December 15th, 1791. 

The Eleventh Amendment, proposed March 5th, 1794, 
ratified January 8th, 1798. 



Art. 6. 1. CONSTITUTION AND LAWS SUPREME. 255 

The Twelfth Amendment, proposed December 12th, 
1803, ratified September 25th, 1804. 
The Thirteenth Amendment, proposed January 31st, 

1865, ratified December 18th, 1865. 

The Fourteenth Amendment, proposed June 16th, 

1866, ratified July 21st, 1868. 

The Fifteenth Amendment, proposed February 27th, 
1869, ratified March 30th, 1870. 

Of the four Amendments proposed by Congress, but 
not ratified by the constitutional number of States, two 
were proposed by the First Congress, at the same time 
with the ten that were ratified. The third was pro- 
posed at the second session of the Eleventh Congress. 
The fourth was that relating to slavery, proposed March 
2d, 1861, at the close of the Thirty-sixth Congress. 

ARTICLE VI. 
MISCELLANEOUS. 

Clause 1. — All debts contracted and engagements entered 
into, before the adoption of this Constitution, shall be as 
valid against the United States under this Constitution as 
tinder the Confederation. 

A similar provision was made in the Articles of 
Confederation. There was a new Constitution, but 
the nation was the same. The nation under its new 
Constitution would be subject to all the obligations 
assumed before this Constitution had been adopted. 

Clause 2.— This Constitution, and the laws of the United 
States which shall be made in pursuance thereof, and all 
treaties made, or which shall be made, under the authority 
of the United States, shall be the supreme law of the land ; 
and the judges in every State shall be bound thereby, any- 
thing in the constitution or laws of any State to the con- 
trary notwithstanding. 



256 THE CONSTITUTION. Art. G. 3. 

The language of this clause is clear and explicit. 
The people of the United States established this Con- 
stitution for the United States. It was the work of 
the nation itself, and was binding in every part of 
the Republic. This clause was intended to affirm the 
supremacy of the national government over the State 
governments. If a law of a State, though in accord- 
ance with the constitution of that State, should be in 
conflict with the Constitution or a law of the United 
States, the former must yield. The judges in every 
State are expressly required to declare null and void 
any law of a State thus in conflict with a law of the 
United States, or with its Constitution. 

The Constitution of the United States is the organic 
law, and all statutes, national and State, must be in 
conformity with its provisions. Bat there is this wide 
difference between the legislation of Congress and that 
of a State legislature. The former body is guided by 
the Constitution only. The latter must regard not 
only the National Constitution, but the laws enacted 
by Congress, as well as its own State constitution. 

A law of the United States is binding until declared 
unconstitutional by the Courts. As already stated, the 
Supreme Court has declared very few acts of Congress 
unconstitutional since the Constitution was adopted. 

An attempt was made by South Carolina, in 1832, to 
nullify certain laws of the Union, but it was promptly 
suppressed by President Jackson. 1 

Clause 3. — The Senators and Representatives before 
mentioned, and, the members of the several State legisla- 



1 Mr. John C. Calhoun's plan is here given as a curiosity. If 
Congress should pass a law objectionable to any State, the State 
might reject it, and require that it be submitted to the several 
States. If three-foiirths of the States approved it, the State should 
submit; otherwise the law should be null and void so far as con- 
cerned that State. 



Art. G. 3. OATH TO SUPPORT THE CONSTITUTION. 257 

hires, and all executive and judicial officers, both of the 
United States and of the several States, shall be bound by 
oath, or affirmation, to support this Constitution; but no 
religious test shall ever be required as a qualification to 
any office or public trust under the United States. 

This oath to support the Constitution is required of 
all officers, both national and State, and belonging to 
either of the three departments, executive, legislative, 
judicial. The Constitution itself (Article II, Section 2, 
Clause 7) prescribes the oath to be taken by the Presi- 
dent of. the United States. The first statute enacted 
under the Constitution was for the purpose of carrying 
into effect the present clause. On the first of June, 
1789, a law was passed, prescribing the oath, as well as 
the time and manner of taking it, by the officers of 
the United States, and of the several States. Objection 
was made to the bill on the ground that, while an 
oath was obligatory upon all officers, State and national, 
there was no provision in the Constitution empowering 
Congress to pass a law enjoining the oath. To this it 
was replied that the general declarations of the Con- 
stitution could not be carried into effect without par- 
ticular regulations adapted to the circumstances, and 
that these regulations must be made by Congress. 1 

The same objection has been made in numerous 
other instances, but the answer above given is suf- 
ficient. Were the objection to be regarded as valid, the 
wheels of government must stop. The Constitution is 
full of provisions requiring the performance of various 
duties, while no express power is given to Congress to 
pass laws prescribing the mode of performance. But 
Congress has always regarded itself as possessing the 
requisite power. In the first statute enacted under 
the Constitution, Congress decided that it had this 



1 Annals of Congress, I, p. 266. 
C. G. 22. 



258 THE CONSTITUTION. Art. 6. 

power, and the law then enacted has remained in force 
to this day. In regard to a similar clause the Supreme 
Court held, that ''the end being required, it is a just 
and necessary implication that the means to accom- 
plish it are given also; or, in other words, that the 
power flows as a necessary means to accomplish the 
end. * * The national government, in the absence 
of all positive provisions to the contrary, is bound, 
through its proper departments, legislative, judicial, or 
executive, to carry into effect all the rights and duties 
imposed on it by the Constitution." 

The act of June 1st, 1789, prescribed the following 
oath : " I, A. B., do solemnly swear, or affirm (as the 
case may be), that I will support the Constitution of 
the United States." On the second of July, 1862, a 
very stringent oath of office was prescribed for all per- 
sons who should be elected or appointed to any office 
under the general government. The act required the 
person to take oath that he had never taken arms 
against the United States, or aided its enemies; that he 
had not sought or held office under, or yielded any sup- 
port to, any pretended government hostile to the United 
States. It was applied to attorneys in 1S65. 

This oath has been called the "iron clad oath," and 
it was this act which was pronounced unconstitu- 
tional by the Supreme Court, so far as it related to at- 
torneys "of that Court. In 1868 (July 11th). the retro- 
spective part of the iron-clad oath was abolished for 
those persons having had participation in the late re- 
bellion, from whom all legal disabilities shall have 
been removed by act of Congress, by a vote of two- 
thirds of each House. In 1871 (February loth), the 
act of 1868 was made applicable to all who participated 
in the rebellion, who are not ineligible to office by the 
provisions of the Fourteenth Amendment. 

The last clause — touching a religious test — provides 
for universal toleration. Xo desire has ever been man- 



Art. 7. RATIFICATION OF THE CONSTITUTION. 259 

ifested to remove this prohibition and introduce a re- 
ligious test. 

When the Convention of South Carolina ratified the 
Constitution, they proposed this among other Amend- 
ments — that the word "other" should be inserted after 
the word "no;" implying that an oath, or affirmation, 
to support the Constitution, was itself a religious test. 1 

* ARTICLE VII. 
RATIFICATION OF THE CONSTITUTION. 

The ratification of the Conventions of nine States shall 
be sufficient for the establishment of this Constitution be- 
tween the States so ratifying the same. 

The Articles of Confederation provided that no alter- 
ation should be made in them " unless such alteration 
be agreed to in a Congress of the United States, and be 
afterwards confirmed by the legislature of every State." 
This provision was entirely disregarded in adopting 
the present Constitution, showing that those Articles 
were. not regarded as any thing more than a provisional 
Constitution. They were in the "form of a compact 
among the States," in the language of Mr. Madison. 

The people, in whose name the Declaration of Inde- 
pendence was made on the fourth of July, 1776, had 
nothing to do with the Articles of Confederation. These 
had " no higher sanction than a mere legislative ratifi- 
cation." 2 The Convention had now framed a Constitu- 
tion in the name of the people, by whom it was to be 
ratified. Thus the old Articles of Confederation were 
practically ignored by the Convention, and by the 
people of the United States. 

In the resolution of the Continental Congress, adopted 
February 21st, 1787, which provided for calling the 



1 Jour. Cont. Cong., XIII, p. 171. 2 Federalist, No. 43. 



260 THE CONSTITUTION. Art, 7. 

Convention, it was stipulated that the Convention 
should report to Congress and to the several State legis- 
latures for action by all these bodies. But the Conven- 
tion, as seen in this Article, did not ask the ratification 
of their work, either by Congress or by the State legis- 
latures ; but by Conventions of the people. They not 
only ignored the old Constitution, they also disregarded 
the directions of Congress as expressed in the reso- 
lution under which the Convention itself had been 
called. In the Convention Mr. Madison said it was es- 
sential that the direct action of the people should be 
had : and that the new Constitution should be ratified 
in the most unexceptionable form by the supreme au- 
thority of the people themselves. 

The Constitution was to be binding when ratified 
by the Conventions of nine States — two-thirds of the 
whole number. This was the number required under 
the Confederation for declaring war, making treaties, 
emitting bills of credit, etc. 

The Constitution was signed by the members of the 
Convention, September 17th, 1787, and forwarded to 
Congress, with a resolution requesting that it be trans- 
mitted to the several States for ratification by Conven- 
tions. Another resolution was adopted by the Conven- 
tion, making suggestions to Congress in regard to the 
mode of putting the Constitution into operation after 
it should be ratified. Accompanying these resolutions 
was a letter to the President of Congress, by George 
"Washington, President of the Convention. 

On the twenty-eighth of September, Congress voted 
unanimously to transmit the Constitution to the sev- 
eral State legislatures, to be by them submitted to 
" Conventions of delegates chosen in each State by the 
people thereof." It was ratified by Delaware. Decem- 
ber 7th ; by Pennsylvania, December 12th ; by New 
Jersey, December 18th; by Georgia. January 2d, 1788; 
by Connecticut, January 9th : by Massachusetts, Feb- 



Art. 7. RATIFICATION OF THE CONSTITUTION. 261 

ruary 7th; by Maryland, April 28th; by South Caro- 
lina, May 23d; and by New Hampshire, June 21st. 
This made the requisite number of States. 

On receiving the intelligence that the ninth State 
had ratified the Constitution, Congress appointed a com- 
mittee to report a plan for putting the new government 
into operation. This Committee reported July 14th. 
On the thirteenth of September, final action was taken, 
providing for the election of the two Houses of Con- 
gress, and of a President and Vice-President, and ap- 
pointing the fourth day of March as the day on which 
to commence proceedings. Before that day Virginia 
and New York had ratified the Constitution, making 
eleven States. North Carolina had rejected it, and 
Rhode Island refused to call a Convention. Both, how- 
ever, ratified it subsequently; the former, November 
21st, 1789, the latter, May 29th, 1790. It will be re- 
membered that Rhode Island sent no delegate to the 
Convention that framed the Constitution. 

The question naturally arises, what would have been 
the relation of these two States to the United States had 
they finally refused to ratify the Constitution. It has 
been held by some that their status would have been that 
of foreign nations. This view is believed to be unten- 
ble. While the Constitution was undergoing discussion 
in the Conventions, the question as to the relations to 
the others of any States that should not ratify it, was 
justly considered a very delicate one. The object of 
the friends of the Constitution was to induce every State 
voluntarily to adopt it ; and to announce, beforehand, 
what would be the consequences of a refusal, might 
be construed into a threat, and so obstruct the attain- 
ment of the desired object. 1 Of this question Mr. Mad- 
ison said, "The flattering prospect of its being merely 
hypothetical forbids an over curious discussion of it. 



Farrar, p. 490. 



262 THE CONSTITUTION. Art. 7. 

It is one of those cases which must be left to provide 
for itself. * * Considerations of a common interest, 
and above all, the remembrance of the endearing scenes 
which are past, and the anticipation of a speedy tri- 
umph over the obstacles to reunion, will, it is hoped, 
not urge in vain moderation on one side, and 'prudence 
on the other." l 

After the Constitution went into operation, this ques- 
tion soon came before Congress. On the fifth of June, 
1789, a resolution was introduced into the House of Rep- 
resentatives, urging the legislature of Rhode Island to 
call a convention. In July a law was passed imposing 
a tonnage duty of fifty cents a ton on foreign ships. In 
September this was suspended as to Rhode Island and 
North Carolina till January 15th. In February (North 
Carolina having meanwhile ratified the Constitution), 
at the request of Rhode Island, the suspension was ex- 
tended to April 1st. Thus the ships of the people of 
Rhode Island were regarded as ships of citizens of the 
United States, by the request of Rhode Island herself. 
Meanwhile the legislature had passed an act providing 
for a convention. On the eighteenth of May the Senate 
of the United States passed a bill prohibiting all com- 
mercial intercourse, and demanding a sum of money 
for her proportion of the expenses of the war. But 
before this was acted on by the House of Representa- 
tives, Rhode Island had made the desired ratification. 
Among the reasons urged in the House for not passing 
the Senate bill, was this : That Rhode Island was about 
to hold a convention; it would be pleasanter for all 
that she should come in freely; if the bill should pass 
and she were to come in, she would be like " a soldier 
pressed into the service, looked upon as unworthy to be 
ranged with the volunteers." 

A careful study of the proceedings in Congress will 



federalist, No. 43. 



Art. 7. AMENDMENTS. 263 

show that steps looking toward coercion had already- 
been taken; and that, had Rhode Island much longer 
refused to ratify the Constitution, she would have been 
compelled to choose between the condition of a State 
in the Union and that of a Territory or district under it. 
Rhode Island was a part of the domain of the United 
States, and she could not be allowed to alienate it. 

" Both Rhode Island and North Carolina were com- 
ponent parts of the nation; and no practical statesman 
will admit for a moment that they could have been 
permitted, by a permanent refusal to take part in the 
new government, to constitute themselves independent 
foreign nations in the heart of the Republic." 1 

"If nine States had ratified the Constitution, and 
the other four had stood out and refused to do it, which 
was within their competency, they would not have been 
independent sovereign States outside, of the Union, but 
Territories under the Union." 2 



AMENDMENTS. 

The Constitution makes provision for Amendments. 
Nineteen have been proposed by Congress, and fifteen 
have been ratified by the requisite number of States. 

At the time the Constitution itself was ratified by 
the States, several of them recommended Amendments. 
In consequence of these recommendations, and to re- 
move as far as possible all objections on the part of the 
people to the new Constitution, the subject was brought 
up in the First Congress, and the House of Representa- 
tives agreed, by the requisite vote of two-thirds, to seven- 
teen Amendments. The Senate reduced the number to 
twelve. Ten of these were subsequently ratified by the 
legislatures of three-fourths of the States. The same 
Congress decided that the Amendments should not be 



x Farrar, p. 491. 2 Brownson, p. 288. 



264 THE CONSTITUTION. Amend. 1. 

incorporated into the text of the Constitution, but be 
appended to it, as a series of distinct provisions. They 
have been, therefore, numbered as so many distinct 
Articles. They have the same force as the original 
Constitution. 

The first ten Amendments are of the nature of a bill 
of rights. Nothing of this distinctive character is con- 
tained in the original Constitution. A motion was 
made in the Convention for a committee to prepare 
such a bill, but it did not pass. Five States voted for 
it. and five against it ; two were absent. 1 As the States 
in favor were Northern, and those against, Southern, 
the inference has been drawn by some that a bill of 
rights was excluded in the interest of slavery.- Others 
have contended that the Constitution itself was a bill 
of rights. The necessity of a distinct declaration of 
rights in the Constitution of a republican government 
is not so obvious as under a monarchy. Guaranties 
against hereditary monarchs may be needed, but the 
people hardly need such guaranties against tbemselves. 

Article 1. — 88 shall make no law respecting an 

establishment of relig . . he free exercise 

thereof; or abridging the freedom of :r of the press; 

or the right of the people d to 

jjetition the government for a redress of grievances. 

This is a prohibition with reference to Congress : it 
imposes no restraint on the action of the States. It 
has been held that most of the Amendments proposed 
by the First Congress do not apply to the States, but 
to the national government alone. The several State 
constitutions contained provisions similar to those 
found in these Amendments, restricting the operation 
of those governments. It was. therefore, for the purpose 
of restraining the various departments of the general 



Elliot, V. p. 538. 2 Farrar, p. 39o. 



Amend. 2, 3. AMENDMENTS. 266 

government that these ten Amendments were proposed. 
This is the view taken by the Supreme Court of the 
United States. 1 

Congress can not make any religion the established 
religion of the nation, neither can it do aught to pre- 
vent its free exercise. 

By " the freedom of speech or of the press " is meant 
the right to speak and publish whatever is not in dero- 
gation of private rights, and which does not disturb the 
public peace or tend to subvert the government. There 
is danger, in a republican government, of carrying this 
freedom to excess, both in speech and in the press. We 
must be careful not to injure others in their rights of 
any kind, or weaken the authority of the government. 
Especially in times of insurrection or rebellion is 
abundant caution needed. Too much regard can not 
be paid to time and place and circumstances. "I be- 
lieve in free speech," said the Duke of Wellington, "but 
not on board a man-of-war." 

The right to assemble peaceably and petition for a 
redress of grievances is too obvious to have needed 
mention in the Constitution of a free people. 

Article 2. — A well-regulated militia being necessary to 
the security of a free state, the right of the people to keep 
and bear arms shall not be infringed. 

The militia are the citizen soldiery of the country, 
as distinguished from the standing, or regular, army. 
The militia S3 T stem has been allowed to fall into partial 
decay, showing that the people have little fear of need 
to defend themselves by force of arms against their 
government. 

Article 3. — No soldier shall, in time of peace, be quar- 
tered in any house without the consent of the owner, nor 
in time of war, but in a manner to be prescribed by law. 



7 Wallace, 321. 
C. G. 23. 



266 THE CONSTITUTION. Amend. 4, 5. 6. 

This was a mode by which despotic rulers might op- 
press their subjects. To quarter soldiers in a house is 
to station them there for lodging and subsistence. 
This article recognizes the maxim of the common law, 
that a man's house is his castle. By owner is meant as 
well the occupant for the time being. 

Article 4. — The right of the people to be secure in 
their persons, houses, papers, and effects, against un- 
reasonable searches, and seizures, shall not be violated, 
and no warrants shall issue, but upon probable cause, 
supported by oath or affirmation, and particularly de- 
scribing the place to be searched, and the persons or things 
to be seized. 

This, like the previous article, is for the protection 
of the citizens. As soldiers could not be quartered 
upon them, so unreasonable searches and seizures are 
prohibited, and every search or seizure must be made 
by special, and not by general, warrant. 

Article 5. — Xo person shall be held to answer for 
a capital or otherwise infamous crime, unless on a pre- 
sentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia 
when in actual service in time of war or public danger; 
nor shall any person be subject for the same offense to be 
twice put in jeopardy of life or limb; nor shall be com- 
pelled in any criminal case to be a witness against him- 
self; nor be deprived of life, liberty, or property, without 
due process of law; nor shall private 'property be taken 
for public use without just compensation. 

Article G. — In all criminal prosecutions, the accused 
shall enjoy the right to a speedy and public trial, by 
an impartial jury of the State and district wherein the 
crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of 



Amend. 7, 8.. AMENDMENTS. 267 

the nature and cause of the accusation; to be confronted 
with the witnesses against him', to have compulsory pro- 
cess for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defense. 

Article 7. — In suits at common law where the value 
in controversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved, and no fact tried by 
a jury shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the common 
law. 

These three articles have already been considered in 
connection with Article III, Section 2, Clause 3, of the 
Constitution. 

Article 8. — Excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and unusual punish- 
ments inflicted. 

It has been maintained, as already stated, that this 
article refers to the national government, and not to 
the State governments; and the same has been held 
concerning some of the articles that precede it. "The 
first ten Amendments were manifestly adopted from 
superabundant caution, as these rights were already 
sufficiently guarded by the State constitutions and bills 
of rights." 1 

While some maintain that this Amendment, as well 
as most of those which precede it apply to the State 
governments as well as the national, 2 the Courts have 
taken the other view. The language of the Fourteenth 
Amendment seems to imply the same, as in it the 
States are prohibited from doing what the Fifth 
Amendment prohibits. If the Fifth applies to the 
State governments, what need of the same prohibitions 
in the Fourteenth? 



! Duer, p. 344. 2 Farrar, p. 396. 



-'-•5 rzz ;:: ~-r:_~_::>~. Amend. 9 r 10. 

Article 9. — Ute enumeration in the Constitution of 
certain rights shall not be construed to deny or dispar- 
age others retained by the people. 

The very language of this article shows the impossi- 
bility of making any complete enumeration of rights. 
The inference might he drawn from some of the pre- 
ceding articles, that what has not been therein pro- 
hibited, the government has the power to do. This 
article was inserted to prevent such an inference, by 
the declaration that other rights not specifically men- 
tioned are not therefore to be denied. But what ot^ 
The matter is left in fact just where it was before any 

It was well said by Mr. Hamilton "That bills of 
rights are, in their origin, stipulations between kings 
and their subjects, abridgments of prerogative in fa- 
vor of privilege, reservations of rights not surrendered 
to the prince. * * * They have no application to 
constitutions professedly founded upon the power of 
the people, and executed by their immediate represent- 
atives and servants. Here, in strictness, the people 
surrender nothing; and as they retain every thing, 
they have no need of particular reservations. * * * 
The truth is, that the Constitution is itself, in every 
rational sense, and to every useful purpose, a bell of 

Article 10. — The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to 
the people, 

part of the Constitution has been so often incor- 
rectly quoted as this. The word a expressly r has been 
interpolated before the word "delegated." and many, 
perhaps, believe the Constitution to speak of powers 



Amend. 10. AMENDMENTS. 269 

expressly delegated to the United States. But the word 
is not in the Constitution, either in this article or in 
any other. It was in the Articles of Confederation, 
which was not a real constitution, but only an agree- 
ment between the States. It was not strange that the 
declaration was there made that " Each State retains 
every power, jurisdiction, and right which is not by 
this Confederation expressly delegated to the United 
States." 

A motion was made, when this Amendment was 
under consideration in Congress, to insert the word 
"expressly," but it was not carried. Mr. Madison ob- 
jected to it, "because it was impossible to confine a 
government to the exercise of express powers; there 
must necessarily be admitted powers by implication 
unless the Constitution descended to recount every 
minutia." 1 A few days afterward the motion was re- 
newed, and again it was lost. 2 

This Tenth Amendment has not only been misquot- 
ed, its meaning has been strangely perverted. Says Dr. 
Cooper, "Congress, under the Constitution of 1787, and 
its Amendments, can exercise no rights or powers but 
such as are expressly enumerated and delegated, or that 
necessarily and unavoidably flow from those that are. 
Every other right and power is reserved by and re- 
mains vested in the States; to be delegated or not." 3 
There is no such doctrine as this in the Constitution; 
if found anywhere, it is in the old Articles of Confed- 
eration. It is not strange that those who could see 
this in the Constitution could also find secession, nulli- 
fication, lack of right to coerce the individual States 
by the general government, and want of jurisdiction 
in the Supreme Court in questions between a State and 
the United States. 



1 Annals of Congress I, p. 790. 2 Ibid, p. 797. 
3 Statutes of South Carolina, I, p. 217. 



270 THE CONSTITUTION. Amend. 10. 

f 

The meaning of the Amendment is plain. The peo- 
ple of the United States are the source of power. They 
have established a kind of double government, that of 
the United States and that of the several States. The 
people of the United States have authorized the gen- 
eral government, known as the United States, to exer- 
cise large powers, and in the same Constitution have 
made various prohibitions upon the State governments. 
Whatever there may be of the nature of governmental 
power, which has not been thus authorized to the 
general government, nor prohibited to the States, the 
people of the States may delegate to the States, or 
they may retain it undelegated. The States, as govern- 
mental corporations, have delegated nothing; they have 
retained nothing. The people of a State may insert in 
their own constitution any power not already inserted 
by the whole people in the Constitution of the United 
States, and not forbidden by the whole people to be 
inserted in a State constitution. 

The distinction between the people and the government 
must never be lost sight of. The people make consti- 
tutions; governments carry on the legislative, execu- 
tive, and judicial departments of civil society in con- 
formity with the Constitution thus made by the people. 
This is true of the whole people and of the people of 
the several States. The people of the United States are 
under no restrictions as to the powers with which they 
may clothe their government, except those that are 
imposed by the great rules of justice and right. But 
the people of a State are restricted. They may not 
confer on their State government any powers which 
the whole people have conferred on the United States 
government, nor any which the whole people have 
said shall not be exercised by the State governments. 
"What is not conferred by the Constitution is with- 
held, and retained by the State governments, if vested 
in them by their Constitutions ; and if not so vested, it 



Amend. 11. AMENDMENTS. 271 

remains with the people, as a part of their residuary 
sovereignty. * * It is a general principle that 
all bodies politic possess all the powers incident to a 
corporate capacity, without any express declaration to 
that effect; and one of those defects of the Confeder- 
ation which led to its abolition, was its prohibiting 
Congress from the exercise of any power 'not expressly 
delegated.' " » 

These ten Amendments were proposed by Congress Sep- 
tember, 25th, 1789, and ratified December 15th, 1791. 

Article 11. — The judicial power of the United Stcdes 
shall not be construed to extend, to any suit in law or 
equity commenced or prosecuted against one of the United 
States by citizens of another State, or by citizens or sub- 
jects of any foreign State. 

This Amendment, which has been considered already 
in connection with the Judiciary, was proposed March 
5th, 1794, and ratified January 8th, 1798. 

Article 12. — This Amendment, relating to the elec- 
tion of President and Vice-President, was given in full 
(p. 166,) when treating of the Executive Department. 
It was proposed December 12th, 1803, and was officially 
declared to be ratified September 25th, 1804. 

Article 13, Sec. 1. — Neither Slavery nor involuntary 
servitude, except as a punishment for crime, whereof the 
party shall have been duly convicted, shall exist within the 
United States, or any place subject to their jurisdiction. 

Sec. 2. — Congress shall have power to enforce this ar- 
ticle by appropriate legislation. 

Until this Amendment was made, the word slavery 
was not to be found in the Constitution. If the idea 
was there, it was expressed by a euphemism. Even the 
Amendment proposed by Congress, March 2d, 1861, to 



1 Duer, p. 345. 



272 THE CONSTITUTION. Amend. 13. 

which allusion has already been made, spoke of u per- 
sons held to service or labor." But now that the in- 
stitution was to be abolished, it was called by its own 
name. 

Slavery had already been abolished by act of Con- 
gress in the District of Columbia, April 16th, 1862, and 
in the Territories, June 19th, of the same year. The 
President had also, by proclamation, January 1st, 1863, 
declared all slaves in the rebel States free. 

The resolution for the abolition of slavery was passed 
by two- thirds of the Senate, April 8th, 1864. But the 
requisite majority was not secured in the House till 
the following winter. It was adopted, January 31st, 
1865, and transmitted to the States. The ratification 
by the requisite number of States was announced De- 
cember 18th of the same year. 

Mr. Secretary Seward, in his certificate, that the 
Amendment had become valid as a part of the Consti- 
tution of the United States, named twenty-seven States 
— three-fourths of thirty-six — as having ratified it. Of 
these, eight had been in the Rebellion; and though 
they had formed new free-State constitutions, under the 
Proclamations of Presidents Lincoln and Johnson, none 
of them had been formally restored to the Union by act 
of Congress. There were then nineteen loyal States 
that had ratified this Amendment, and four others did 
so subsequently to the date of the certificate. Accord- 
ing to the view taken in this work, that a proposed 
Amendment becomes valid when ratified by three- 
fourths of the loyal States, the Thirteenth Amendment 
was truly a part of the Constitution at the date of the 
Secretary's certificate, nineteen of the twenty-five loyal 
States having ratified it. 

Those who think the ratifications of three-iourths of 
the whole number of States requisite, maintain the le- 
gality of the ratification in this way. The eight insur- 
rectionary States that ratified this Amendment had 



Amend. 14. I. AMENDMENTS. 273 

been reconstructed in accordance with executive proc- 
lamations, though without any official recognition by 
Congress. But as this body had not disapproved of 
this reconstruction, and as this Amendment had been 
sent to these States for ratification, Congress did give a 
kind of passive approval of the executive policy of 
reconstruction, and so virtually recognized them as 
States. When, subsequently, (March 2d, 1867), Congress 
declared these eight with two others to be in a state of 
insurrection, the act has no retrospective effect. 1 

If the consistency of Congress is called in question 
in thus seeming to recognize these eight States by ask- 
ing for, and receiving, their ratifications of the proposed 
Amendment, and subsequently refusing admission to 
their Senators and ^Representatives, the explanation 
must be left to Congress. But whether these eight were 
veritable States under the Constitution, or not, there 
can be no doubt that the Thirteenth Amendment has 
been duly ratified by three-fourths of the loyal States, 
if those only should be counted, or by three-fourths of 
the whole. 

The second clause of the Amendment seems wholly 
superfluous, as Congress has the same power to enforce 
this as any other provision of the Constitution. 

Article 14, Section 1. — All persons born or natural- 
ized in the United States, and subject to the jurisdic- 
tion thereof, are citizens of the United States and of the 
State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State de- 
prive any person of life, liberty, or property, without due 
process of law, nor deny to any person within its juris- 
diction the equal protection of the laws. 

This Amendment was proposed by Congress, June 



1 Skinner's Issues of American Politics, p. 204. 



274 THE CONSTITUTION. 

16th, 1866, and was declared to be a part of the Con- 
stitution, July 21st, 1S6S, by the action of Congress. 
The Secretary's proclamation is dated July 28th. 

The Thirteenth Amendment abolishes slavery through- 
out the United States. According to the opinion given 
by Mr. Justice Swayne, as already quoted, the emanci- 
pation of a slave removes the obstacle to his citizen- 
ship. Aliens become citizens by naturalization ; slaves. 
by emancipation. The act passed by Congress in April, 
1866, known as the Civil Rights Bill, gave expression 
to this opinion. It declared all persons born in the 
United States, and not subject to any foreign power, ex- 
cluding Indians not taxed, to be citizens of the United 
States. It conferred upon the freedmen all the rights, 
and made them liable to all the obligations of citizens. 
But it was doubted by some whether a mere act of leg- 
islation could confer citizenship, and whether it did 
not require the authority of the Constitution itself. To 
make sure the citizenship of the emancipated popula- 
tion, the principle of the Civil Rights Bill was embod- 
ied in this Fourteenth Amendment. 

While the first section had its origin in the purpose 
of the people to protect the colored population, the lan- 
guage is not restricted to them, but is applicable as 
well to all the citizens of the country. And as it has 
been maintained that the first eight Amendments 
had no reference to the State governments, but were 
restraints upon the general government only, this 
Fourteenth Amendment declares explicitly that " Xo 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law, nor 
deny to any person within its jurisdiction the equal 
protection of the laws." 

In April, 1871, an act was passed to enforce the provis- 
ions of this Amendment. It "was rendered necessary, 



Amend 14. II. AMENDMENTS. 275 

in the judgment of Congress, in consequence of the 
treatment received by the colored people of certain 
States of the South, and the failure of those States to 
afford them the protection required by the Constitution. 
The act is known as the Ku Klux Bill. It provides 
that the failure of a State to protect any portion of its 
people against unlawful combinations shall be deemed 
a denial of the protection guaranteed in this amend- 
ment. Under this act the President suspended the 
writ of habeas corpus in certain counties, and suppressed 
the combinations. 1 In March, 1875, an act was passed 
entitling all persons to the full and equal enjoyment of 
inns, public conveyances, places of amusement, etc. 

Section 2. — Representatives shall be apportioned among 
the several States according to their respective numbers, 
counting the whole number of persons in each State, ex- 
cluding Indians not taxed. But when the rigid to vote 
at any election for the choice of electors for President and, 
Vice-President of the United States, Representatives in 
Congress, the executive and judicial officers of a Stcde, or 
the members of the legislature thereof, is denied to any of 
the male inhabitants of such State, being twenty-one years 
of age, and citizens of the United Stcdes, or in any way 
abridged, except for participation in rebellion or other 
crime, the basis of representation therein shcdl be reduced 
in the proportion which the number of such male citizens 
shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

So long as there were slaves, three-fifths of them were 
counted in order to ascertain the population of a State, 
and thus the number of Representatives to which the 
State was entitled. But slavery having been abolished, 
Representatives must be apportioned among the States 
according to their respective numbers. 



1 For a severe criticism of the law see Skinner, p. 316. 



276 THE CONSTITUTION. Amend. 14. II. 

The number of Representatives being in proportion 
to the whole population of the States, including those 
that are colored, if suffrage were denied to this class, 
the former slave States would have delegations in 
Congress much larger, in proportion to the number of 
voters, than the original free States. To remedy this 
inequality was the object of this second section. The 
States are not required to allow the blacks the right 
of suffrage; but if they do not allow it, their represen- 
tation in Congress will be proportion ably diminished. 
They may take their choice between general suffrage 
and more Congressmen, or white suffrage and fewer 
Congressmen. 

This section implies the normal case of suffrage to 
be this : that all male citizens of twenty-one years of 
age may vote. For it provides that if any such are 
not allowed by their State to vote, the number of Rep- 
resentatives in such State shall be diminished. This 
seems to throw the moral influence of the Constitution 
in favor of universal suffrage. There is nothing, how- 
ever, to prevent any State from prescribing a quali- 
fication of intelligence, or one of property. But as this 
Amendment would reduce the number of Representa- 
tives in a State, should any large number of voters 
be found not to possess the required qualification, the 
probability of suffrage limitation is rendered less than 
before. 

It has been claimed that this Amendment establishes 
the principle of woman suffrage. Does it? The first 
section declares who are citizens. All persons born or 
naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens. They are citizens as 
soon as born. Children are citizens as well as men 
and women. Citizenship and suffrage, then, are not 
the same. This section confers civil rights, but not 
political. A State is prohibited from interfering with 
civil rights, but nothing is said of suffrage. 



Amend. 14. III. AMENDMENTS. 277 

The second section provides that if in any State any 
male citizens of tiventy-one years of age are denied the 
rights of voting, the State shall suffer by a proportionate 
reduction of the number of Representatives in Congress. 
If citizenship implied the right to vote, no State could 
deprive a constitutional citizen of that right. The 
very supposition, in the second section, that a State 
may deny the right to vote to some whom the Con- 
stitution declares to be citizens, is proof that one may 
be a citizen and yet be unable to vote; and, therefore, 
the conferring of citizenship is not the conferring of 
the right of suffrage. 

Again, those whom a State may not with impunity 
deprive of the right of suffrage, have two requisites : 
they are males, and of the age of twenty-one years. A 
State may prevent others from voting as much as she 
pleases; the Constitution contains no inhibition, and 
affixes no penalty for such prevention. If the first 
section gives women the right to vote, the second 
permits a State to take the right away. Virtually the 
Constitution in this Amendment indicates the essential 
requisites for the exercise of suffrage. Voters must be 
male citizens of the age of twenty-one. These two are 
placed in the same category, and hold precisely the 
same relation to suffrage. If the right to vote belongs 
by this second section to one not a male, by the same 
reasoning it belongs to one not twenty-one years old. 
The real meaning is, that as males under twenty-one 
are not expected to vote, so women are not expected 
to do it. Provision was made to enforce this section 
in the act of Congress, passed February 2d, 1872. 

Section 3. — No person shall be a Senator or Representa- 
tive in Congress, or elector of President and Vice-President, 
or hold any office, civil or military, under the United States, 
or under any State, who, having previously taken an oath, 
as a member of Congress, or as an officer of the United States, 



278 THE CONSTITUTION. Amend. 14. III. 

or as a member of any State legislature, or as an executive 
or judicial officer of any State, to support the Constitution 
of the United States, shall have engaged in insurrection or 
rebellion against the same, or given aid or comfort to the 
enemies thereof. But Congress may, by a vote of two-thirds 
of each House, remove such disability. 

This section needs little comment. Those who, as 
officers under a State or the Nation, had sworn to sup- 
port the Constitution of the United States, and then 
engaged in rebellion, are precluded from again holding 
office, except Congress, by a vote of two-thirds, shall 
remove the disability. 

Article II, Section 2, of the Constitution gives the 
President power to grant reprieves and pardons for 
offenses against the United States, except -in cases of 
impeachment. It is doubted whether cases of amnesty 
were intended to be included. Early in the war, July 
17th, 1862, Congress authorized the President to issue 
proclamations of amnesty. This was done by President 
Lincoln and by President Johnson. In January, 1867, 
the authority was withdrawn by Congress, but President 
Johnson nevertheless issued other proclamations even 
after the ratification of this Amendment. Whether he 
had the authority to issue such proclamations after the 
repeal of the provision referred to, is doubtful; but 
certainly he had no power, after the adoption of this 
Amendment, to absolve from their guilt any offenders 
included under its provisions. As the second section 
of Article II of the Constitution gave the pardoning 
power to the President, so this third section of the 
Fourteenth Amendment repealed that power so far as 
applicable to the classes named therein. 

The disabilities imposed by this section were removed 
from many persons mentioned by name in the several 
acts, and, in May, 1872, Congress passed a general act, 
removing such disabilities from all except Senators 



Amend. 14. IV. AMENDMENTS. 279 

and Representatives of the Thirty-sixth and Thirty- 
seventh Congresses; officers in the judicial, military, 
and naval service of the United States ; heads of de- 
partments, and foreign ministers of the United States. 
These classes will hardly remain exceptional long. 

Section 4. — The validity of the j)ublic debt of the 
United States, authorized, by law, including debts incurred 
for payment of pensions and bounties for services in sup- 
pressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume 
or pay any debt or obligation incurred in aid of insur- 
rection or rebellion against the United States, or any 
claim for the loss or emancipation of any slave ; bid all 
such debts, obligations, and claims shall be held illegal 
and void. 

This section had immediate reference to the exist- 
ing public debt, which was incurred in suppressing the 
rebellion; but the language is general, and therefore 
applicable to all public debts. The prohibition as to 
the payment by the United States or any State of 
any part of a debt incurred in aid of insurrection or 
rebellion against the United States, is also general. 
The measure is one of obvious security, as under the 
reconstruction laws many of those formerly in the 
rebellion have been admitted again to the State and 
National legislatures. It is better for all to have the 
question settled by the adoption of a clause in the 
organic law itself. 

Section h.—The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article. 

The same remark may be made of this as of the cor- 
responding section in the Thirteenth Amendment; it 
seems to be unnecessary. Whatever the Constitution 
requires, Congress has the power to carry out by ap- 



280 THE CONSTITUTION. Amend. 15. 

propriate legislation, whether there be specific provision 
for it or not. 

Article 15, Sec. l.— The right of citizens of the United 
States to vote shall not be denied or abridged by the United 
States, or by any State, on account of race, color, or pre- 
vious condition of servitude. 

Sec. 2. — The Congress shall have power to enforce this 
article by appropriate legislation. 

The second section of the Fourteenth Amendment 
was intended to secure suffrage to the freedmen. This 
was to be done indirectly, however. The right of suf- 
frage was not conferred upon the colored race by a direct 
affirmative grant, but the States which should with- 
hold it were to have their number of Representatives 
in Congress reduced in proportion. The measure was 
not attended with the success which was anticipated. 
The enfranchisement of the colored race was deemed 
indispensable to their own safet}' and to the prosperity 
of the nation; and the first plan to secure it having 
failed, a second was proposed. Hence this Fifteenth 
Amendment. It declares expressly that the right of 
citizens to vote shall not be denied or abridged on ac- 
count of race, color, or previous condition of servitude. 
The Fourteenth Amendment declared the colored race 
to be citizens, and thus gave them all civil rights; and 
the Fifteenth secures them suffrage, and thus bestows 
upon them political rights. 

This article does not, of course, imply that all citizens 
possess the right to vote. We have seen that the Four- 
teenth Amendment declares children, as well as adults, 
to be citizens; showing that to make the right of 
suffrage co-extensive with citizenship would be simply 
absurd. The meaning is that the right to vote of those 
citizens who enjoy the right, to wit., males of twenty- 
one years, shall not be denied on account of race, color, 
or previous condition of servitude. It may not be 



Amend. 15. AMENDMENTS NOT RATIFIED. 281 

denied for either of these three causes, but it may for 
any other. The freedmen are put upon an equality 
with others as to the right of suffrage. If an educa- 
tional qualification is required, it will apply to the 
whites as well. So with a property qualification. Vir- 
tually, this Amendment establishes universal suffrage ; 
and while some great evils were in this way prevented, 
the extension of the elective franchise to a large 
number of ignorant persons, can not be viewed but 
with deep regret, and with grave foreboding. Weighty 
obligations rest on all intelligent citizens to extend to 
this class of our population the opportunities of educa- 
tion, that they may vote intelligently. 

The right to vote implies the right to be voted for. 

In May, 1870, Congress enacted a stringent law " to 
enforce the right of citizens of the United States 
to vote." It was amended in February, 1871. 

This Fifteenth Amendment was proposed by Congress, 
February 27th, 1869, and declared to be duly ratified 
March 30th, 1870. 

AMENDMENTS PROPOSED BUT NOT RATIFIED. 

Besides the fifteen Amendments which have become 
a part of the Constitution, four have been proposed by 
Congress but not ratified by the legislatures of three- 
fourths of the States. Two of these were proposed by 
the First Congress. Twelve were proposed, of which the 
last ten were ratified. The others were as follows : 

1. After the first enumeration required by the first 
article of the Constitution, there shall be one Repre- 
sentative for every thirty thousand, until the number 
shall amount to one hundred, after which the propop 
tion shall be so regulated by Congress that there shall 
be not less than one hundred Representatives, nor less 
than one Representative for every forty thousand per- 
sons until the number of Representatives shall amount 
C. G. 24. 



282 THE CONSTITUTION. 

to two hundred; after which the proportion shall be 
so regulated by Congress that there shall not be less 
than two hundred Representatives, nor more than one 
Representative for every fifty thousand persons. 

2. No law varying the compensation for the services 
of the Senators and Representatives shall take effect, 
until an election of Representatives shall have inter- 
vened. 

The following Amendment was proposed by the Elev- 
enth Congress at their second session : 

3. If any citizen of the United States shall accept, 
claim, receive, or retain any title of nobility or honor, 
or shall, without the consent of Congress, accept and 
retain any present, pension, office, or emolument of any 
kind whatever, from any emperor, king, prince, or 
foreign power, such person shall cease to be a citizen 
of the United States, and shall be incapable of hold- 
ing any office of trust or profit under them or either 
of them. 

The fourth of the Amendments proposed but not rati- 
fied was at the close of the Thirty-sixth Congress, March 
2d, 1861. It has been quoted on a former page. 

4. No Amendment shall be made to the Constitution 
which will authorize or give to Congress the power to 
abolish or interfere, within any State, with the domestic 
institutions thereof, including that of persons held to 
labor or service by the laws of said State. 



CHAPTER V. 

THE RATIFICATION OF THE CONSTITUTION BY THE SEVERAL STATES. 

The Convention which formed the Constitution met 
in Philadelphia on the second of May, 1787, but the 
organization was not effected till the twenty- fifth. 
George Washington was appointed President. All the 
States were represented but Rhode Island. Connecticut 
did not send a delegation till a fortnight after the time 
appointed, and New Hampshire was not represented 
till the twenty-third of July. 

The Constitution was adopted by the Convention on 
Saturday, September 15th, and signed by the members 
on Monday, the 17th. In the Convention the vote was 
by States, and as two of the three delegates from New 
York — Messrs. Lansing and Yates — had withdrawn 
when it was decided to form a new Constitution in- 
stead of revising the Articles of Confederation, the 
Constitution was adopted by the delegates from eleven 
States. It was thought desirable that the instrument 
should go forth to the public with the signatures of 
the individual delegates, as well as the official attesta- 
tion of the Convention. The following was the form : 
" Done in Convention, by the unanimous consent of 
the States present, the seventeenth day of September, 
in the year of our Lord 1787, and of the Independence 
of the United States the twelfth. In witness whereof, 
we have hereunto subscribed our names." All the 
delegates present signed it except Messrs. Randolph 
and Mason from Virginia, and Mr. Gerry from Massa- 
chusetts. New York was not officially present in the 

(283) 



284 THE CONSTITUTION. 

Convention, but the instrument bears the signature of 
Alexander Hamilton, from that State, who took a most 
prominent part in its deliberations. 

The following resolutions, adopted by the Convention, 
were transmitted to Congress, with a copy of the Consti- 
tution, accompanied by a letter from the President : 

"In Convention, Monday, September 17th, 1787. 

"Resolved, That the preceding Constitution be laid be- 
fore the United States in Congress assembled, and that 
it is the opinion of this Convention that it should 
afterwards be submitted to a convention of delegates, 
chosen in each State by the people thereof, under the 
recommendation of its legislature, for their assent and 
ratification; and that each convention, assenting to 
and ratifying the same, should give notice thereof to 
the United States in Congress assembled. 

"Resolved, That it is the opinion of this Convention, 
that as soon as the conventions of nine States shall 
have ratified this Constitution, the United States in 
Congress assembled, should fix a day on which electors 
should be appointed by the States which shall have 
ratified the same, and a day on which the electors 
should assemble to vote for the President, and the time 
and place for commencing proceedings under this Con- 
stitution. That after such publication the electors 
should be appointed, and the Senators and Representa- 
tives elected; that the electors should meet on the day 
fixed for the election of the President, and should trans- 
mit their votes, certified, signed, sealed, and directed, as 
the Constitution requires, to the Secretary of the United 
States in Congress assembled; that the Senators and 
Representatives should convene at the time and place 
assigned; that the Senators should appoint a President 
of the Senate, for the sole purpose of receiving, open- 
ing, and counting the votes for President; and that, 
after he shall be chosen, the Congress, together with 



THE MODE OF RATIFICATION. 285 

the President, should, without delay, proceed to execute 
this Constitution. 

"By the unanimous order of the Convention, 

"George Washington, President. 

"William Jackson, Secretary." 

The resolution of Congress, adopted February 21st, 
1787, recommending that a Convention should be held 
for the purpose of revising the Articles of Confedera- 
tion, contemplated that those alterations, after being 
agreed to by Congress, should be confirmed by the States. 
But the Convention, in the resolutions transmitted to 
Congress with a copy of the Constitution, proposed that 
this confirmation should not be by the States, i. e., by 
the legislatures of the "States, but that the instrument 
should "be submitted to a convention of 'delegates, 
chosen in each State by the people thereof." 

The Articles of Confederation had been adopted by 
Congress and ratified by the legislatures of the several 
States. They had never been submitted to the people. 
It was expected that the alterations would be submitted 
to the legislatures and not to the people. The Conven- 
tion thought, however, that if the adoption of the new 
Constitution were to be referred to the State legislatures 
it would not rest on the direct authority of the people. 

The Articles of Confederation could not be amended 
without the assent of all the States; but the Consti- 
tution was to go into effect when nine of the thirteen 
should have ratified it. The Convention, therefore, 
"had prepared a system of government that would not 
merely alter, but would abolish and supersede the Con- 
federation ; and they had determined to obtain, what 
they regarded as a legitimate authority for this pur- 
pose, the consent of the people of the States, by whose 
will the State governments existed." 1 The Articles of 



Curtis's History of the Constitution, II, p. 481. 



- ; 



..'.'.' 



'> -■: : .ir:-~ L-: -": .z- -:i:^ 
. - i _ . " - :::.:-.::: : i :i : _ T i_ 
ie name of the people. But 
the Omslitiition framed by the Contention of K$7 was 

ii Tit - l~ : i- . i 

;-:.*. i ^:di 1t::^t ::- -iZiLitj ::: : _ :i.T 7e:iLi 



s to the \ *t ™ res virtually the 

si— f ^ i:~ :~ t"-t : :t ; - ::~r Lit- ii: i:: ":-:: 

:" " . " 11 llrr: " 1 1 1 11 71? 

- ::i: :•:' :ir z:-f:iz.7:i. —^^7 ~-~~ — z — ~ 

hers of the CbnTention had great h :"_t i 

>-if7:7i7; i — :cli :»i : ni :•: ?t_- "7 :it--t t^i- 111 

li :iif ;ir; rrf 1:: iifsiiTxiiiT'i 

":iz:t- Li— hi rioi:-^: \z.-. :-;•': :d :i? ;>"fi- 
1:1 .1 -tt:-i_ -: l::i liiTifi z_- ill; — hi rr*:- 
I-t::- _ r .--- •'•■:".:" 11:,- '~ :c=> :"_:.: :i- .i: 1 rrj.n, 

-_:i tit resiiTin^ 111 I177.H .; : :•: i_-.::_-:h :- =;m- 
:>t 7Tiifn:7:.ei :: :i- ; :-::i leriiliTii^ :i ::•:- :: 
he submitted to a c ont e n tion -of deflesates, chosen in 
each State by the people thereof in conformity to the 

::-:/:: ! I 71r '■ZZZZ.~rZZZ.7izZl HIIt ll' TTI" Iff 11 TUT 

:: -ill ":* ^i ir-j -•::-- :i, 
to the State lrgi i ilalm ci ^ without either 
isijT7-:-il Tii- -if -'::: :i: lii-riTi:! 
:t-_:;t-:t-] :i:iii l -;:- ::' 2.7T":~il — :■-".: i:~r 
::-:_:-::ri ii? !i:i7::i :i :i- :•: --fVvn :ii :■: :- v::^ 
opposition was made m Congress to the Con- 
and to obtain n«mmi t.y it was necessary, 
says Mr. Madison, to conch the resolution in rtxj 

_,-. . : -,_ : - _--^ - -- -,..----_ .-,--- -_■-_ ._ - L 
which had far its object the subversion of the 

-i::i Tirj ; :7el Til- 
11—11 >i Lif-a-fr^i i: i.:: _ -- i_i'"r "• 



ITS ADVOCATES AND OPPONENTS. 287 

the Constitution by inserting a bill of rights, trial by 
jury in civil cases, etc. Had this effort been successful, 
it would, without doubt, have defeated the Constitution, 
as two instruments would have been placed before the 
people for their ratification. 

The Convention had kept their proceedings secret, 
and there was consequently great anxiety to know the 
character of the new Constitution. Singular rumors 
were circulated, among which was one that a system 
of monarchical government had been framed, and the 
monarch designated in the person of one of the sons of 
George III. But, two days after the Convention ad- 
journed, the new Constitution was published in the 
newspapers of Philadelphia, thus dispelling all doubt in 
regard to it. 

" It met every-where with warm friends and warm 
opponents." Mr. Curtis classifies its advocates thus : 
first, a large body who regarded it as the admirable 
system which it proved to be when put into operation ; 
second, those who believed it to be the best attainable 
government that could be adopted by the people of the 
United States, over-looking defects which they ac- 
knowledged, or trusting to the power of amendment 
which it contained; and, third, the mercantile and 
manufacturing classes who regarded its commercial and 
revenue powers with great favor. "Its adversaries," 
he says, " were those who had always opposed any 
enlargement of the federal system; those whose conse- 
quence as politicians would be diminished by the 
establishment of a government able to attract into 
its service the highest classes of talent and character, 
and presenting a service distinct from that of the 
States; those who conscientiously believed its provis- 
ions and powers dangerous to the rights of the States 
and to public liberty ; and, finally, those who were op- 
posed to any government, whether State or national or 
federal, that would have vigor and energy enough to 



288 THE CONSTITUTION. 

protect the right? of property, to prevent schemes of 
plunder in the form of paper money, and to bring 
about the discharge of public and private debts.'" 

The legislatures of all the States, except Rhode 
Island, called conventions of the people to act upon the 
Constitution, though in some of them there was strong 
opposition. Thus in Xew York the resolutions for a 
convention were passed by majorities of only three in 
the Senate and two in the House ; and this on the first 
of February, 1788, when five States had already ratified 
the Constitution. 

The first ratification was by Delaware, on the seventh 
of December, 1787. It was done unanimously, and 
without the recommendation of any amendment. 

Pennsylvania was the second to ratify. This was 
done, without declaration or recommendation, on the 
twelfth of December, by a vote of 46 to 23. 

Xew Jersey ratified the Constitution December 18th. 
Her vote was unanimous. 

The next was Georgia, which was also unanimous in 
her ratification. It was done January 2d. 1788. 

Connecticut followed on the ninth of January, ratify- 
ing without any declaration, and without recommenda- 
tions, by a vote of 128 to 40. 

The convention of Massachusetts commenced its ses- 
sions on the ninth of January, the day of the ratifica- 
tion by Connecticut, and continued in session till the 
seventh of February. The discussion was warm and 
able, and the Constitution was ratified at last by a ma- 
jority of only 19 in a Convention of 355. Nine amend- 
ments were recommended, two or three of which were 
included in the amendments proposed by the First 
Congress. 

Maryland passed a vote of ratification April 28th. 
The vote stood 63 to 11, and there were no amendments 
or resolutions. 

South Carolina ratified the Constitution May 23d, 



ITS RATIFICATION BY THE STATES. 289 

1788, by a vote of 149 to 73. Several amendments were 
recommended. 

The ninth State was New Hampshire. Her ratifica- 
tion was made, June 21st>, 1788, by a majority of 11. 
The convention had assembled in February, but after 
a warm discussion had adjourned to the eighteenth of 
June. Three conventions were in session at the same 
time : that of Virginia having convened June 2d, and 
that of New York on the 17th. New Hampshire ac- 
companied her ratification with twelve amendments, 
of which three were subsequently embodied in the 
amendments proposed by Congress. 

As the Constitution was to become binding when 
nine States had ratified it, New Hampshire completed 
the number. As soon as the intelligence of her action 
reached Congress, a committee was appointed to report 
an act for putting the Constitution into operation. 

The tenth State in the order of ratification was Vir- 
ginia. She ratified on the twenty-fifth of June, by a 
vote of 89 to 79. 1 It should be stated that this vote was 
taken before the convention knew of the action of New 
Hampshire. The members of the Virginia Convention 
supposed that by her ratification she would make the 
number complete. The convention proposed many 
amendments, and accompanied their ratification with a 
declaration of rights. " We, the delegates of the 
people of Virginia, * * * do, in the name and in 
behalf of the people of Virginia, declare and make 
known that the powers granted under the Constitution, 
being derived from the people of the United States, 
may be resumed by them whenever they shall be per- 
verted to their injury or oppression, etc." 

This shows very clearly the opinion of the majority 



1 The date usually given is June 26th. The vote of ratification 
was on the 25th ; an engrossed form of the ratification was read 
and signed by the president on the 26th. Elliot, III, p. 656. 
C. G. 25. 



290 THE CONSTITUTION. 

of the members of the convention as to the source of 
the powers granted under the Constitution. They 
came, net from the States, but from the people of the 
United States. 

New York was the eleventh State to ratify the Con- 
stitution. The opposition was very strong, and it was 
for some time doubtful whether the vote of ratification 
could be carried. It will be remembered that two of 
the three delegates sent by New York to -the Conven- 
tion which framed the Constitution, left the Convention 
when they became satisfied that a new instrument 
would be framed. These two delegates— Messrs. Lan- 
sing and Yates — as well as Mr. Hamilton, were in the 
State convention. A form of ratification was proposed 
which provided that the act of ratification was made 
"on condition" that Congress would not exercise certain 
powers till a general Convention should be called for 
proposing amendments. The words " on condition " 
were finally stricken out, and the words " in full confi- 
dence " substituted ; though the vote was 31 to 29. In 
this form the ratification was voted, 30 to 27, on the 
twenty-sixth of July. 

A long declaration of rights was made, and a great 
number of amendments proposed. 

The convention of North Carolina commenced its 
session July 21st, but adjourned on the 2d of August, 
after passing a resolution that a declaration of rights 
and certain amendments ought to be laid before Con- 
gress and a convention which might be called for 
amending the Constitution, previous to its ratification 
by North Carolina. This was adopted by 184 to 84. 
More than a year later another convention was held, 
and, on the twenty-first of November, 1789, North Car- 
olina ratified the Constitution by a majority of 11. 
This was more than eight months after the Constitution 
had gone into operation. This ratification was accom- 
panied with a bill of rights and many amendments, 



ITS RATIFICATION BY THE STATES. 291 

mostly like those of Virginia. It should be noted that 
delegates from North Carolina, and one of those from 
Rhode Island, continued in Congress to the last, and 
delegates from both States voted on questions pertain- 
ing to the Constitution as late as August 6th, 1788. 

Rhode Island sent no delegates to the Convention 
which framed the Constitution. When that instrument 
was received from Congress, the legislature caused it to 
be published and circulated among the people, but did 
not call a convention to ratify it. Instead of this they 
referred the adoption of it to the people in their town 
meetings for the purpose of having it rejected. There 
were but four thousand legal voters in the State, and of 
the small minority who favored the adoption of the 
Constitution few voted. The votes against it were 
2,708; those in favor, 232. This was in March, 1788. 
After an interval of more than two years, Rhode Island, 
called a convention, and the Constitution was ratified 
on the twenty-ninth of May, 1790. 

The ratification of New Hampshire, which was the 
ninth in order, was received by Congress July 2d, 1788. 
A committee was appointed on the same day to exam- 
ine the various ratifications and report an act for put- 
ting the Constitution into operation. The only member 
who voted against the appointment of a committee was 
Mr. Yates, of New York, who left the Constitutional 
Convention, and voted against the ratification of the 
Constitution in the convention of New York. 

The committee reported, on the fourteenth of July, an 
act which was debated till the thirteenth of Septem- 
ber, when the following resolution was adopted : 

"Resolved, that the first Wednesday in January next 
be the day for appointing electors in the several States, 
which, before the said day, shall have ratified the said 
Constitution; that the first Wednesday in February next 
be the day for the electors to assemble, in their respect- 
ive States, and vote for a President ; and that the first 



292 THE CONSTITUTION. 

Wednesday in March next be the time, and the present 
seat of Congress the place, for commencing proceedings 
under the said Constitution." 

The first Wednesday in March of the year 1789 hap- 
pened to be the fourth day, which thus became the 
initial day of our governmental year. On the fourth 
of March each new Congress commences its existence, 
and on this day the President is inaugurated. 

Elections of Senators and Representatives were held, 
and electors of President were appointed, in accordance 
with the act of Congress, and the first Congress under 
the Constitution met on the fourth of March, 1789. 
For want of a quorum the organization was not effected 
till the first of April in the House, and the sixth of 
April in the Senate. The electoral votes were then 
counted in the presence of both Houses. 

George Washington was found to have been elected 
President by a unanimous vote (69) ; and John Adams 
was declared Vice-President, as having the next highest 
number (34), though it was less than a majority. Mr. 
Adams took the chair as President of the Senate April 
21st, and General Washington was inaugurated Presi- 
dent April 30th, 1789, in the city of New York. 

Thus quietly the government went into operation 
under the new Constitution. It was extraordinary 
that a President should have been unanimously elected, 
when we remember the great opposition which the 
Constitution encountered, and that the new President 
had presided over the Convention which framed the in- 
strument. At the expiration of his first term President 
Washington was again elected by a unanimous vote ; 
fifteen States now voting while before there had been 
but ten. Vermont and Kentucky had been admitted 
into the Union before the second Presidential election. 
Since the administration of President Washington, no 
President has received the votes of all the electors. 

Those who had opposed the Constitution in the State 



ITS SUCCESS. 293 

conventions gave in their acquiescence when they 
found that the people had voted to ratify it. The 
dangers which had been feared were found to be im- 
aginary. The Constitution has proved itself to be just 
what the nation needed. Once only has there been a 
determined effort to overthrow it. And this would not 
have been made had it not been that the slave-hold- 
ing States thought their interests would be promoted 
by a dissolution of the Union. To effect this, they 
placed upon the Constitution an interpretation the 
opposite of that attributed to it by those who opposed 
its ratification in 1787 and 1788. Patrick Henry, and 
those who agreed with him, would not ratify the Con- 
stitution because it was the Constitution of a Nation 
and not a league of States. In 1861 the people of a 
portion of the States claimed the right of peaceable 
secession, because, as they affirmed, the government 
was a league. Had it been so understood when the 
adoption of the Constitution was under discussion in 
the State conventions in 1788, those who were the 
most strongly opposed to it would have been the most 
eager to adopt it. 



CHAPTER VI. 

THE ADMISSION OF NEW STATES — THE TERRITORIAL GOVERNMENTS. 

At the birth of the Nation — July 4th, 1776 — there 
were thirteen States; there are now — 1878 — thirty-eight. 
The Constitution went into operation when only eleven 
had ratified it ; but the other two gave their ratifications 
shortly after — North Carolina, November 21st of the 
same year, and Rhode Island on the twenty-ninth of 
May, 1790. The relation of these two to the others, if 
they had refused to ratify, has been discussed in a 
former chapter (page 261). 

Congress has admitted twenty-five new States into 
the Union. Of these, twelve were formed from terri- 
tory belonging to the United States, or to individual 
States when the Constitution was adopted; and eight 
of the others came from the Louisiana purchase. 

Classifying them as to their modes of admission, four 
were formed from other States, nineteen existed as or- 
ganized Territories, one was admitted without having 
had a territorial government, and one was annexed. 

The first State admitted into the Union after the 
adoption of the Constitution was Vermont. The people 
of Vermont, in January, 1777, proclaimed themselves a 
free and independent State, under the name of the 
New Hampshire Grants. In December of that year 
the same convention which had proclaimed the inde- 
pendence of the State, adopted and put into operation 
a constitution. But as the territory was claimed by 
New York, opposition was made by that State to her 
admission into the Union. It was not till October 

(294) 



VERMONT, KENTUCKY, TENNESSEE. 295 

17th, 1790, after the adoption of the Constitution of 
the United States, that New York, by her commis- 
sioner, consented to relinquish her claim to soil and 
jurisdiction, Vermont paying the sum of thirty thou- 
sand dollars. The formal consent of New York was 
given March 6th, 1790, by her legislature. Applica- 
tion was made by Vermont for admission, February 
9th, 1791, and an act, to take effect on the fourth 
of March, was approved February 18th. Vermont, the 
first of the new States, thus became an integral part 
of the Union March 4th, 1791. She came in with the 
constitution which her convention had adopted four- 
teen years before, and which has remained substanti- 
ally the same to the present time. 

Kentucky was the next new State; it was admitted 
June 1st, 1792. As Vermont was formed from a part of 
New York, so Kentucky was formed from a part of 
Virginia. The question of forming a new State from 
that portion of Virginia known as the district of 
Kentucky, began to be agitated as earty as 1784. A 
number of conventions were held, but no results fol- 
lowed till December 18th, 1789, when Virginia passed 
an act giving her consent to a separation, to take place 
June 1st, 1792. On the fourth of February, 1791, Con- 
gress, in answer to a petition from a convention in 
Kentucky, consented to her admission, which was to 
take place June 1st, 1792, according to the agreement 
with Virginia. 

The third State admitted into the Union was Ten- 
nessee, June 1st, 1796. This was originally a part of 
North Carolina. Like Vermont, Tennessee had early 
in the war with Great Britain proclaimed herself in- 
dependent; and she had set up a government in defi- 
ance of North Carolina. She called herself the State 
of Frankland, elected officers, and attempted to defend 
herself by force of arms. The rebellion was, however, 
suppressed. . 



296 THE NEW STATES. 

In February, 1790, North Carolina made a cession of 
her western territory to the United States, with this, 
among other conditions, "That the territory so ceded 
shall be laid out and formed into a State or States, 
containing a suitable extent of territory, the inhabi- 
tants of which shall enjoy all the privileges, benefits, 
and advantages, set forth in the ordinance of the late 
Congress for the government of the western territory 
of the United States." 

On the second of April of the same year, Congress 
accepted the cession, and, on the twenty-sixth of May, 
passed an act organizing the Territory. In July, 1795, 
the territorial legislature ordered a census to be taken 
to ascertain whether the population amounted to 60,000; 
this number entitling the Territory to admission into 
the Union as a State, by the terms of the ordinance 
of 1787 and the deed of cession. The census showing 
a sufficient population, a convention was called to form 
a State constitution. This body met in January, 1796, 
and on the sixth of February adopted a constitution. 
A copy was forwarded to the President of the United 
States in the same month, with a notification that on 
the twenty-eighth of March the territorial government 
would cease. The peculiar action of Tennessee in de- 
manding rather than asking admission into the Union 
is to be explained by her understanding of the ordi- 
nance of 1787. A very earnest debate followed, but 
finally an act for admission was passed ; it was approved 
June 1st. Tennessee was the first State admitted which 
had been previously governed -as a Territory. 

There had been thus three new States admitted into 
the Union before the close of the century: Vermont, 
Kentucky, and Tennessee. The first in this century 
was Ohio, admitted February 19th, 1803; which, though 
the seventeenth at the time of her admission, has long 
held the third rank in population. The old States had 
ceded to the United States all their claims of jurisdic- 



NORTH-WEST TERRITORY— OHIO. 297 

tion, and, with a few exceptions, of soil, to territory 
lying north-west of the Ohio River. In the summer of 
1787, while the Convention was framing the Constitu- 
tion, at Philadelphia, Congress at NeAV York passed an 
"Ordinance for the government of the territory of the 
United States north-west of the River Ohio.'' This 
was the most important act performed by Congress 
under the Articles of Confederation. "Never, probably, 
in the history of the world, did a measure of legisla- 
tion so accurately fulfill, and yet so mightily exceed, 
the anticipations of the legislators." (Chase, Statutes 
of Ohio.) Its object was declared to be to " extend the 
fundamental principles of civil and religious liberty 
which form the basis whereon these republics, their 
laws and constitutions are erected; to fix and estab- 
lish those principles as the basis of all laws, consti- 
tutions, and governments, which, forever hereafter shall 
be formed in the said Territory." (The ordinance in 
full may be found in the Appendix.) 

The Territory embraced all the land which belonged 
to the United States north-west of the Ohio River, and 
all to which Great Britain had any claim at the time 
of the treaty of 1783. It extended from Pennsylvania 
to the Mississippi, and from the Ohio to the great 
lakes. The ordinance provided for its division into 
three States ; or five, if the people should prefer. Five 
States have been organized : Ohio, Indiana, Illinois, 
Michigan, and Wisconsin. The territorial government 
was organized soon after the passage of the ordinance. 
The government was vested in a Governor and Judges; 
but when there should be 5,000 free males of full age, 
a territorial legislature might be elected. The first 
Governor was General Arthur St. Clair, who was Presi- 
dent of Congress when elected. He entered upon his 
duties in 1788 at Marietta. The first territorial legisla- 
ture met at Cincinnati September 16th, 1799. 

In May, 1800, the Territory was divided: the western 



298 THE NEW STATES. 

portion being called the Territory of Indiana, of which 
W. H. Harrison, afterward President, was made Gov- 
ernor. April 30th, 1802, Congress passed an act to ena- 
ble the people of the eastern division to form a consti- 
tution and State government. The convention met at 
Chillicothe, November 1st, framed a constitution, and 
adjourned on the 29th. The constitution was not sub- 
mitted to the people. There was no formal act admit- 
ting Ohio, but February 19, 1803, when Congress recog- 
nized the new State, is taken as the date of admission. 

Louisiana came next into the Union, April 30$, 
1812. About the time Ohio was admitted, a treaty was 
made with France, in which that power ceded to the 
United States the vast territory known then as Louisi- 
ana, lying mainly on the west of the Mississippi River. 
By this purchase the area of the United States was 
more than doubled. From it the following States have 
already been formed: Louisiana, Arkansas. Missouri, 
Kansas, Nebraska, Iowa, Minnesota, Oregon, and a large 
part of Colorado. 

The treaty with France was made April 30th, 1803. 
A temporary government was provided the same year, 
and, on March 26th, 1804, Congress divided the region 
into two territories — the Territory of Orleans and the 
District of Louisiana. March 2d, 1805, an act was 
passed authorizing a constitution and State government 
in the Territory of Orleans, when its free inhabitants 
should number ^60,000. On the 20th of February. 1811, 
an act was passed to enable the people to form a consti- 
tution and State government. This was done January 
22d, 1812, and the State was admitted into the L"nion 
by act of Congress, April 8th, 1812, to take effect April 
30th of that year. 

Indiana, formed from a part of the North-west Ter- 
ritory, was admitted December 11th, 1816. The Territory 
of Indiana, formed May 7th, 1800, was divided January 
11th, 1805, and the Territory of Michigan established. 



MISSISSIPPI, ILLINOIS, ALABAMA. 299 

It was again divided, February 3d, 1809, and the Ter- 
ritory of Illinois established. The people having ap- 
plied for admission into the Union, an enabling act was 
passed by Congress, April 19th, 1816, and a constitution 
was formed June 29th. A joint resolution admitting 
Indiana into the Union was approved December 11th, 
1816. 

Mississippi, formed from territory ceded by South 
Carolina, August 9th, 1787, and by Georgia, April 24th, 
1802, was admitted December 10th, 1817. Congress estab- 
lished the territorial government April 7th, 1798. An 
act to enable the people of the western part of the Mis- 
issippi Territory to form a constitution and State gov- 
ernment was passed March 1st, 1817. A constitution 
was formed August 15th, 1817, and the State admitted 
by act of Congress December 10th, 1817. 

Illinois was formed from the North-west Territory, 
and admitted December 3d, 1818. The Territory of Illi- 
nois was established February 3d, 1809. A memorial 
of the legislative council to be allowed to form a State 
government having been presented to the House of 
Representatives in January, 1818, an enabling act was 
passed April 18th. The constitution was formed Au- 
gust 26th, and the State was admitted by joint resolu- 
tion December 3d, 1818. 

Alabama, formed from a part of the territory ceded 
to the United States by South Carolina and Georgia, 
was admitted December 14th, 1819. The eastern part of 
Mississippi Territory was made a separate territory, un- 
der the name of Alabama, by act of Congress, March 3d, 
1817. Congress, having been memorialized, passed an 
enabling act March 2d, 1819, and a constitution and 
State government were formed August 2d, 1819. The 
State was admitted by joint resolution December 14th, 
1819. 

Maine was formed from a part of Massachusetts, and 
became a State March 15th, 1820. A project was enter- 



300 THE NEW STATES. 

tained as early as 1786 to erect a separate State from 
that part ' of Massachusetts known as the district of 
Maine, and a convention had once met at Portland to 
consider it. It was, however, abandoned for the time. 
On the nineteenth of June, 1819, the legislature of 
Massachusetts gave their consent to the formation of 
a new State, if the people of the district desired it, 
and would consent to certain conditions. This having 
been done, a convention formed a constitution, October 
29th, which was ratified by the people December 6th. 
A petition was then presented to Congress, and the 
State admitted by an act passed March 3d, 1820, to 
take effect March 15th, 1820. 

This was the third State formed from a part of an- 
other. The others, Vermont and Kentucky, were ad- 
mitted, with two Representatives each; but Maine was 
declared to be entitled to seven, Massachusetts having 
thirteen — Massachusetts had twenty before. The new 
States which had previously been Territories had each 
but one till the next census after their admission. 

Missouri, formed from the Louisiana purchase, was 
admitted August 10th, 1821. As before stated, the act 
of March 26th, 1804, divided the territory purchased 
from France, known as the Louisiana purchase, into 
two Territories. What is now the State of Missouri, 
was a part of the northern territory which was called 
the district of Louisiana. For about a year this was 
under the Governor and Judges of Indiana Territory. 
On the third of March, 1805, a separate government was 
provided, and the name changed to that of Territory 
of Louisiana. On the fourth of June, 1812, the name 
was changed to that of Missouri Territory. March 2d, 
1819, the southern part was separated and erected into 
a new Territory, called Arkansas Territory. Congress 
having been memorialized to admit Missouri as a State 
into the Union, an act was passed March 6th, 1820, 
authorizing the formation of a constitution and State 



MISSOURI, ARKANSAS. 301 

government. In this enabling act it was provided 
"That in all that territory ceded by France to the 
United States, under the name of Louisiana, which 
lies north of 36° 30' north latitude, not included within 
the limits of the State contemplated by this act, slavery 
and involuntary servitude, otherwise than in the pun- 
ishment of crime, whereof the parties shall have been 
duly convicted, shall be, and is hereby, forever pro- 
hibited." 

On the nineteenth of July the people formed a con- 
stitution, which was laid before Congress November 16th. 
March 2d, 1821, a resolution providing for the admission 
of Missouri into the Union on a certain condition was 
approved. The condition having been accepted June 
26th, 1821, the President issued a proclamation, August 
10th. 1821, declaring the admission complete. 

Arkansas, formed out of part of the territory ceded 
by France in 1803, was admitted June 15th, 1836. 

The Territory of Arkansas was established March 2d, 
1819, having been taken from the Territory of Missouri. 
On the thirtieth of January, 1836, a constitution was 
formed by a convention, and this was laid before Con- 
gress March 1st, with a memorial, asking admission 
into the Union. An act to admit was approved June 
15th, 1836. There was no enabling act passed by Con- 
gress in the case of Arkansas. All the States admitted 
up to this time that had existed as Territories, except 
Tennessee, were authorized by Congress to form consti- 
tutions and State governments. Tennessee claimed the 
right of admission under the deed of cession from North 
Carolina to the United States; and Arkansas claimed a 
like right, by virtue of the treaty of cession by France 
to the United States of the Province of Louisiana. This 
treaty provided that " The inhabitants of the ceded 
territory shall be incorporated in the Union of the 
United States and admitted as soon as possible, accord- 
ing to the principles of the Federal Constitution, to the 



302 THE NEW STATES. 

enjoyment of all the rights, advantages, and immuni- 
ties of citizens of the United States." It has been held 
by legal writers that the action of these Territories in 
forming constitutions and State governments without 
authority from Congress was irregular, and that Con- 
gress was not required to admit them at the time of 
application. 

Michigan, formed from the North-west Territory, was 
admitted January 26th, 1837. 

The Territory of Indiana was divided into two, and 
that of Michigan established January 11th, 1805. The 
legislative council, in accordance with a vote of the 
people, having memorialized Congress for admission 
into the Union, a bill was reported as an enabling act 
for that purpose February, 1833 ; but, on account of the 
dispute between Ohio and Michigan as to boundaries, 
it was 'not passed. On the sixth of September, 1834, 
the legislative council of the Territory provided for 
taking the census, and, afterward, for forming a con- 
stitution. This constitution having been ratified by 
the people October 5th, 1835, a State government was 
organized. A copy of the constitution was then sent 
to the President with a request for admission into the 
Union. As the southern boundary which Michigan had 
given in her constitution was south of the northern 
boundary of Ohio, she could not of course be received 
without a change. Strong opposition was made to re- 
ceiving her at all without an enabling act; but finally 
an act of admission was passed, June 15th, 1836, admit- 
ting her on the condition that a convention of delegates, 
elected by the people, should assent to the boundaries 
prescribed by Congress. This was done December 15th, 
1836, and the State was admitted by act of Congress, 
approved January 26th, 1837. 

Florida was formed out of the territory ceded by 
Spain to the United States by treaty of February 22d, 
1819. It was admitted into the Union March 3c?, 1845. 



FLORIDA, TEXAS. 303 

A territorial government was established, by act of Con- 
gress, March 30th, 1822. No enabling act was passed in 
the case of Florida. The convention which framed her 
constitution was called by the legislature of the Terri- 
tory. She based her right to admission on the treaty 
with Spain, as Michigan had based hers on the ordi- 
nance of 1787, and Tennessee hers on the deed of ces- 
sion from North Carolina. She applied for admission in 
February, 1839, presenting the proceedings of her con- 
vention, a constitution, etc., but she was not admitted 
till March 3d, 1845, as stated above. 

The next State admitted was Texas, which came in 
by a joint resolution of Congress, approved December 
29th, 1845. Texas, originally a part of Mexico, had 
become an independent republic. She applied for ad- 
mission into the Union as a State, and a joint reso- 
lution for annexing Texas to the United States was 
approved March 1st, 1845. This resolution authorized 
the admission of Texas on certain conditions and guar- 
anties, requiring the action of the people of that republic ; 
or the President of the United States might negotiate 
with Texas, and it might be admitted by treaty. The 
former method was adopted; and the required condi- 
tions and guaranties having been assented to, a joint 
resolution for the admission of Texas into the Union on 
an equal footing with the original States was approved 
December 29th, 1845. One of the conditions was that 
new States, not exceeding four in number, might sub- 
sequently, by the consent of the State, be formed out 
of the territory and entitled to admission into the 
Union. "And such States as may be formed out of 
that portion of said territory lying south of 36° 3(y N., 
commonly known as the Missouri Compromise line, 
shall be admitted into the Union with or without 
slavery, as the people of each State asking admission 
may desire. And in such State or States as shall be 
formed out of said territory north of said Missouri 



304 THE NEW STATES. 

Compromise line, slavery or involuntary servitude (ex- 
cept for crimes) shall be prohibited." Two Represent- 
atives in Congress were allowed. 

The case of Texas differs from all others in this, that 
until it became a State its people were in no respect 
subject to the government of the United States. 

Iowa was the next of the new States admitted. Iowa 
was admitted December 28th, 1846, and was formed from 
a part of the Louisiana purchase. Confusion has arisen 
as to the origin of this State, and some writers repre- 
sent it as having been formed from the original terri- 
tory of the United States. This confusion is owing to 
the fact that the Territory of Iowa was formed from 
that of Wisconsin, and this from that of Michigan; and 
as Michigan and Wisconsin were both formed from the 
North-west Territory, the inference was natural that 
Iowa was also formed from that territory. 

Prior to the purchase of Louisiana, in 1803, the United 
States owned no territory west of the Mississippi. The 
North-west Territory, organized by the ordinance of 1787, 
embraced the territory north-west of the Ohio and east 
of the Mississippi. This territory was divided in 1800, 
and the western part was called the Territory of Indi- 
ana. In 1805 the Territory of Michigan was established, 
and in 1809 that of Illinois. The Territory of Michi- 
gan, at that time, included the territory north of Ohio, 
Indiana, and Illinois, and east of the Mississippi. But, 
on the twenty-eighth of June, 1834, an act of Congress 
attached to the Territory of Michigan all the territory 
of the United States west of the Mississippi, and north 
of the State of Missouri. This, of course, included what 
is now Iowa. On the twentieth of April, 1836, the terri- 
torial government of Wisconsin was established. Iowa 
thus became a part of the Territory of Wisconsin. This 
Territory was divided, and the new Territory of Iowa 
was established on the twelfth of June, 1838. 

No enabling act was ever passed by Congress for 



IOWA, WISCONSIN. 305 

Iowa. In February, 1841, a bill to that effect was re- 
ported to the House of Representatives, but it was not 
passed. Three years after — February 12th, 1844 — the 
President communicated to the Senate a memorial from 
the legislative assembly for admission into the Union. 
And on December 9th, of the same year a memorial of 
a convention — October 7th to November 1st — with a 
copy of a constitution, was received in the Senate. 

On the third of March, 1845, an act for the admission 
of Iowa was approved. This act required the assent of 
the people of Iowa to be given, after which the Presi- 
dent might, by proclamation, announce the admission 
without further action on the part of Congress. This 
course, however, was not adopted. On the eighteenth 
of May, 1846, another constitution was formed by a 
convention of delegates elected for that purpose, copies 
of which were presented to the Senate June 10th, and 
to the House July 6th. On this second constitution, 
which Congress approved as republican, the act of final 
admission was passed, December 28th, 1846. Iowa was 
allowed two Representatives. 

Wisconsin was admitted May 29th, 1848. This State 
was formed from the North-west Territory, making the 
fifth State, and thus completing the number provided 
for in the ordinance of 1787. The others, as we have 
seen, are Ohio, Indiana, Illinois, and Michigan. 

The Territory of Wisconsin was established April 
20th, 1836, having been formed from that of Michigan. 
On the twentieth of March, 1845, a resolution of the 
legislative council of Wisconsin, asking that provis- 
ion be made for taking a census and holding a con- 
vention to form a State constitution, was presented in 
the Senate. An enabling act was approved August 6th, 
1846. A State constitution was formed December 16th, 
1846, and in January it was presented in Congress. On 
the third of March, 1847, an act for the admission of 
Wisconsin was passed; the admission to be on the 

C. G. 2(5. 



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MINNESOTA, OREGON. 307 

admitted September 9th, 1850. Two Representatives 
were allowed her. 

Minnesota was admitted May 11th, 1858. This State, 
lying on both sides of the Mississippi River, was formed 
in part from the Louisiana purchase and in part from 
the North-west Territory. A territorial government was 
established March 3d, 1849. On the twenty -sixth of 
February, 1857, Congress authorized the people of the 
Territory to form a constitution and State govern- 
ment, preparatory to their admission into the Union, 
A convention was held accordingly, and a constitution 
formed August 29th, which was ratified by the people 
October 13th. 

" The two political parties in the convention, Repub- 
licans and Democrats, disagreeing as to the organization 
of the body, formed separate conventions, which ran 
parallel courses, each claiming to be the only legitimate 
convention. Two constitutions were reported, and it 
seemed that the people were to be embarrassed by the 
necessity of choosing between them, when, towards the 
close of their respective sessions, a conference was had 
between the two bodies, and a single constitution re- 
ported to and adopted by them both. It seems clear 
that this mode of organizing has decided advantages. 
A constitution acceptable to all political parties in a 
State must be free from partisan legislation; must 
contain, as it ought, only measures whose policy or 
expediency had been thoroughly settled in the public 
mind." (Jameson, p. 263.) 

This constitution was approved by Congress, and the 
State was admitted May 11th, 1858, with two Repre- 
sentatives. 

Oregon was admitted February 14th, 1859. Some 
deem it a part of the Louisiana purchase, but that 
province is believed to have embraced only the Missis- 
sippi valley. Others regard the Oregon country as hav- 
ing become ours by the discovery of the Columbia 



308 THE NEW STATES. 

River. There was a conflict of claims in regard to it; 
but in 1819 Spain relinquished to us her claim to all 
north of the 42d parallel, and in 1846 Great Britain did 
the same as to all south of the 49th parallel. There is 
thus a fourfold title : the right by discovery, and by 
cessions from France, Spain, and Great Britain. An 
act of Congress passed August 14, 1848, established a 
territorial government, over " that part of the territory 
of the United States which lies west of the summit of 
the Rocky Mountains, north of the 42d degree of north 
latitude." The northern part was erected into the Ter- 
ritory of Washington March 2d, 1853. 

A convention was called by the legislature of the 
Territory to meet in August, 1857, and in September a 
constitution was formed, which was submitted to the 
people for ratification, and approved. Xo enabling act 
had been passed by Congress in her case. She was de- 
clared entitled to one Representative. 

Kansas was admitted January 29th, 1861. It was 
formed from a part of the Louisiana purchase. It was 
organized as a Territory May 30th, 1854. by the act 
known as the Kansas-Xebraska Act — the two Terri- 
tories being established by the same act. This act 
caused great excitement throughout the country. The 
"Missouri Compromise'' of 1820 provided that there 
should be no more slave States north of the parallel of 
36° 30\ This had been re-affirmed in the joint resolu- 
tion of March 1st, 1845. for annexing Texas, and again 
in the act denning the boundaries of Texas and estab- 
lishing the Territory of New Mexico, passed Septem- 
ber 9th, 1S50. 

Kansas and Nebraska were both north of the parallel 
of 36° 30' : but the act by which they were organized 
as Territories provided that when they should be ad- 
mitted as States into the Union they should be re- 
ceived, with or without slavery, as their constitutions 
might prescribe at the time of their admission. The 



KANSAS, WEST VIRGINIA. 309 

same act declared the Missouri Compromise inoperative 
and void. 

On the twenty-third of October, 1855, a convention 
at Topeka formed a constitution. This was a sponta- 
neous movement on the part of those known as the 
Free State party, not having been called either by the 
Governor or the territorial legislature. The constitu- 
tion was submitted to the people and ratified by a large 
majority of those who voted — the other party not vot- 
ing. Under this constitution an election of State offi- 
cers was held January 15th, 1856, and a State govern- 
ment organized. President Pierce issued a proclamation 
against this government in February, and on the fourth 
of July the legislature was forcibty dispersed by an 
officer of the United States army. 

The territorial legislature also provided for a conven- 
tion, which assembled at Lecompton, September 5th, 
1857, and framed the constitution known as the Lecomp- 
ton constitution. This established slavery. Applica- 
tion for admission into the Union was then made, but 
the bill was not passed as introduced. A bill for condi- 
tional admission was passed May 4th, 1858, which re- 
quired that the constitution, with certain propositions 
from Congress, should be submitted to the people. This 
was done on the third of August of that year, when the 
constitution was rejected by ten thousand majority. 

Another convention was held at Wyandotte, and a 
constitution was formed in July, 1859. This was sub- 
mitted to the people October 4th, and ratified by a ma- 
jority of four thousand. Under this constitution Kansas 
was admitted into the Union, January 29th, 1861. She 
was declared to be entitled to one Representative. 

West Virginia was admitted into the Union June 
20th, 1863. It was formed from a part of Virginia. 
The circumstances of the formation of this new State 
were peculiar. On the seventeenth of April, 1861, a 
body of men, styling themselves the convention of Vir- 



310 THE NEW STATES. 

ginia, passed an ordinance of secession from the United 
States. Most of the State officers joined the rebels, 
carrying with them the public funds and the archives 
of the State. The territory was still a part of the na- 
tional domain, though most of it was in possession of 
the rebels. The loyal people, whom alone the Constitu- 
tion or government of the United States could recognize 
as the people of Virginia, were without a State govern- 
ment. In this exigency they took the reconstruction 
of the State government into their own hands. They 
called a convention, which met at Wheeling, June 13th, 
1861, and passed an ordinance providing for the ap- 
pointment of a Governor and other State officers, and 
requiring the general assembly to meet July 1st. This 
convention also passed an ordinance to provide for the 
formation of a new State out of a portion of the territory 
of Virginia. The people within the prescribed bounda- 
ries were to vote on the question of a new State, and 
polls were also opened for the election of delegates to a 
convention to form a constitution. The vote having 
been largely in favor of a new State, the convention 
met at Wheeling, November 26th, and framed a con- 
stitution which was adopted by the people. 

May 13th, 1862, the legislature of Virginia gave con- 
sent to the formation of a new State. December 31st, 
Congress passed an act admitting West Virginia, pro- 
vided the people should ratify a proposed change in the 
constitution. That being done, the President was to 
issue a proclamation, and the admission was to be com- 
plete sixty days after the proclamation. The conven- 
tion adopted the change February 17th, 1863. The 
vote of the people on the ratification of the amended 
constitution was taken March 26th, 1863, being largely 
in favor. On the twentieth of April, the proclamation 
was issued, and sixty days thereafter — June 2<M, 1863 — 
West Virginia became one of the United States. She 
was allowed three Representatives. 



NEVADA, NEBRASKA. 311 

In this case there was the consent of three parties- 
trie State from which the new State was formed, Con- 
gress, and the people of the district set off. If it were 
doubted whether the body that met at Wheeling in 
July, 1861, was the general assembly of Virginia, the 
action of the United States Government in all its de- 
partments must be deemed conclusive. 

Nevada was admitted into the Union October 31st, 
1864, by the proclamation of the President. It was 
formed from a part of the territory obtained from 
Mexico b}' the treaty of February 2d, 1848. It was 
organized as a Territory March 2d, 1861. In 1863 a 
constitution was formed and submitted to the people, 
but rejected. On the twenty-first of March, 1864, an 
enabling act was passed by Congress, which provided 
for the holding of a convention on the first Monday 
of July. If a constitution should be framed, it was to 
be submitted to the people on the second Tuesday of 
October. The President of the United States, on being 
certified that such constitution had been ratified by 
the people, was to issue his proclamation, admitting it 
without further act of Congress. This was done October 
31st, 1864. It was to have one Representative. 

Nebraska was admitted March 1st, 1867. This is a 
part of the Louisiana purchase. It was organized as a 
Territory May SOth, 1854. An enabling act was passed 
for it April 19th, 1864. In January, 1867, Congress 
passed an act approving its constitution, and admitting 
it on condition that there should be no denial of the 
elective franchise or of other rights because of race or 
color. The act, though vetoed by President Johnson, 
became a law. The conditions were fulfilled, and it be- 
came a State by proclamation of the President March 
1st, 1867. It had one Representative. 

Colorado became a State August 1st, 1876. A part of 
it came from Louisiana and a part from the territory 
acquired from Mexico. It was organized as a Territory 



312 TE7 \'Z"' 3TATBB 

A bill to admit it as a State was 

sed in January, 1> 
dent. An enabling act was passed March 3d, 187-5. and 
tut ion was formed This was ratified by the 
_e in July 1 " and the President was dnly certi- 

ned thereof. It then :.erms of the enabling act, 

':::i.: :::? L".:" :•: :.~:'.:r.i ::.:- S::.;e ~i:i_:::e:. in:-: :he 

Union *- without any farther action whatever on the 

It came in with one Representative. 

Tt -_.."-" 

to their oric - 'Original SI tec ikhrieem, — 

Hampshire. Massachusetts, Connecticut, Rhode 
Island, N< 

Maryland. Virginia, >"::::; - 

.-.._. * formed from territory originally be- 

longing to the State; — ".-:... : ~ M ::.:- :\ 

tneky. Tenne-- A '/:.:: I:..: 

Illin ■: - M . --"".._.:.: -:.:-- 

formed from territory purchased by the United States, 
eight — Florida. Louisiana. Arkai- - ] 
Nebraska v Mini.-- : -*":■:? from conquered ter- 
ritory - ■ — . 

—Ore gon : of mixed origin, erne — Colorado 
isting before as an independent republic, mu — ~. 

Arranged according to the mode <#" admumam^ the new 
aid be grouped as follows: Four were formed 

from - " " t 

Virginia. Otic had no prevk- : orial government 

— California. Ome was annexed — Texas. The remain- 
ing niwrib&en had been organiied as Territories prior to 
their admission :.- S1 

There are eight organized Territories. Washington 
and Idaho are a part of the Oregon territory. Dakota 
belonged to the province of Louisiana. Arizona. 

o, and Utah are part of the territory acquired 
from Mexico in 1848 and l v ntana is chiefly 

from Louisiana, that part west of the Rocky Mountains 



THE TERRITORIES. 313 

being originally a part of Oregon. Wyoming has its 
larger part from Louisiana, with smaller portions from 
Oregon and Mexico. 

The Executive power of a Territory is vested in a 
Governor; the Legislative, in the Governor and Legis- 
lative Assembly; and the Judicial, in a Supreme Court, 
District Courts, Probate Courts, and Justices of the 
Peace. The Governor, Secretary, Chief Justice and two 
Associate Justices, Attorney, and Marshal, are appointed 
by the President, with the advice and consent of the 
Senate, for four years, unless sooner removed by the 
President, with the consent of the Senate. The Legis- 
lative Assembly consists of a Council and House of 
Representatives. These are elected by the people — 
the former for two years, the latter for one year. The 
Governor has the power to veto bills, modified as in 
the case of the President. 

The officers of the Territories are paid from the 
treasury of the United States. The Governor receives 
$2600 a 3'ear; the Secretary, $1800; the Judges of the 
Supreme Court, who also hold the District Courts, $2600 
each; the Attorney and Marshal are paid by fees; the 
members of the Assembly, $6.00 a day for forty days, and 
$3.00 for each twenty miles of travel ; the President of the 
Council and the Speaker of the House, $10.00 a day. 

In addition to the States and Territories mentioned 
above, the United States includes the unorganized 
Territory of Alaska, purchased from Russia in 1867, 
containing 577,390 square miles; and the Indian coun- 
try lying w T est of Arkansas, which, with some ten thou- 
sand square miles of unorganized territory adjoining 
it on the west, contains 68,991 square miles. 

According to the Ninth Census Report, the number 
of square miles in the whole area of the United States 
is 3,603,884. Of this the thirty- eight States contain 
2,088,967 and the Territories (including Alaska and 
the Indian country), 1,513,917. 

C. G. 27. 






CHAPTER VII. 

PRACTICAL OFERATTOX OF THE COySTlTTTiOJT. 

In this chapter will be given some account of the 
workings of the government under the Constitution. 
The more important offices in the different depart- 
ments will be mentioned, with the duties, compensa- 
tion, mode of appointment, etc. 

THE LEGISLATIVE DEPARTMENT. 

The Constitution provides, as has been seen, for a 
Congress, composed of a Senate and House of Repre- 
sentatives. The Senators are elected by the State legis- 
latures, and hold their office for six years; the Repre- 
sentatives are elected by the people of their several 
districts, for the term of two years. The members of 
the two Houses receive the same compensation, $5000 
a year, with mileage at the rate of " twenty cents a 
mile, to be estimated by the nearest route usually trav- 
eled in going to and returning from each regular ses- 
sion/' 

THE SENATE. 

The Vice-President of the United States is the Presi- 
dent of the Senate. He _ the casting vote when 
the Senate is equally divided, and signs all bills and 
resolutions that are passed by the Senate. His salary 
originally $-5000. In : ; " it was raised to $8000, 
in 1873 tc >; "0,000. and in 1874 reduced to $8000. 

The following is the list of Vice-Preside :\ ts : 

J hn Ada: 17-? : 17', : \ 

Thomas Jefferson, 1797 to 1801. 

(3U) 



THE SENATE. 815 



Aaron Burr, 1801 to 1805. 

George Clinton, 1805 to 1812. 1 

Elbridge Gerry, 1813 to 1817. 

Daniel D. Tompkins, 1817 to 1825. 

John C. Calhoun, 1825 to 1832. 2 

Martin Van Buren, 1833 to 1837. 

Richard M. Johnson, 1837 to 1841. 

John Tyler, 1841 to 1841. 3 

George M. Dallas, 1845 to 1849. 

Millard Fillmore, 1849 to 1850. 4 

William R. King, 1853 to 1853. 5 

John C. Breckenridge, 1857 to 1861. 

Hannibal Hamlin, 1861 to 1865. 

Andrew Johnson, 1865 to 1865. 6 

Schuyler Colfax, 1869 to 1873. 

Henry Wilson, 1873 to 1875. 7 

William A. Wheeler, 1877 to . 



There is no provision in the Constitution or by statute 
for rilling a vacancy in the office of Vice-President. 
From March 4th, 1853, to March 4th, 1857, there was 
no Vice-President, Mr. W. R. King having died before 
taking the oath of office. When the Vice-President be- 
comes President, the Senate choose a President pro tem- 
pore, but this does not constitute him Vice-President. 

The Secretary of the Senate receives $4896; the Sergeant- 
at-arms, $4320; the Chaplain, $900. 

THE HOUSE OF REPRESENTATIVES. 

The presiding officer, called the Speaker, is chosen 
by the House. The term had its origin when legisla- 
tive bodies were addressed by the chief executive, and 



1 Died April 20th, 1812. 2 Eesigned December 28th, 1832. 

3 Became President April 6th, 1841, on the death of Pres. Harrison. 

4 Became President July 9th, 1850, on the death of President Taylor. 

5 Never took the oath of office. Died April 18th, 1853. 

6 Became President April 15th, 1865, on the death of Pres. Lincoln. 

7 Died November 23d, 1875. 



316 THE LEGISLATIVE DEPARTMENT. 

their presiding officer was expected to respond. As he 
spoke for the body he was called the Speaker. He signs 
all bills and joint resolutions passed by the House, and, 
under the rules of the House, appoints its committees. 
If both the President and Vice-President are incapaci- 
tated to perform the duties of President, and there is 
no President pro tempore of the Senate, the Speaker of 
the House acts as President. He is required to vote in 
case of ballot, and he may vote on other occasions. His 



salary is $s,uuu. 
1st Congress 


ine speakers nave oe( 
, F. A. Muhlenberg, 


in: 

Penn. 


2d 


a 


Jonathan Trumbull, 


Conn. 


3d 


a 


F. A. Muhlenberg, 


Penn. 


4th 


a 


Jonathan Dayton, 


N.J. 


5th 


a 


Jonathan Dayton, 


a 


6th 


a 


Theodore Sedgwick, 


Mass. 


7th 


a 


Nathaniel Macon, 


N. C. 


8th 


a 


Nathaniel Macon, 


a 


9th 


a 


Nathaniel Macon, 


u 


10th 


a 


Joseph B. Varnum, 


Mass. 


11th 


a 


Joseph B. Varnum, 


a 


12th 


a' 


Henry Clay, 


Ky. 


-> 13th 


a 


j Henry Clay, 

1 Langdon Cheves, 


it 




S. C. 


14th 


it 


Henry Clay, 


Ky. 


15th 


a 


Henry Clay, 


it 


16th 


a 


| Henry Clay, 

( John W. Taylor, 


It 




N. Y. 


17th 


a 


P. P. Barbour, 


Va. 


18th 


a 


Henry Clay, 


Ky. 


19th 


a 


John W. Taylor, 


N. Y. 


20th 


a 


Andrew Stevenson, 


Va. 


21st 


a 


Andrew Stevenson, 


a 


22d 


a 


Andrew Stevenson, 


u 


23d 


it 


( Andrew Stevenson, 
(John Bell, 


li 

Tenn. 



THE HOUSE OF REPRESENTATIVES. 



317 



24th Congress, James K. Polk, 



Tenn. 



25th 


a 


James K. Polk, 


tt 


26th 


a 


R. M. T. Hunter, 


Va. 


27th 


it 


John White, 


Ky. 


28th 


a 


John W. Jones, 


Va. 


29th 


it 


John W. Davis, 


Ind. 


30th 


a 


Robert C. Winthrop, 


Mass. 


31st 


it 


Howell Cobb, 


Ga. 


32d 


a 


Linn Boyd, 


Ky. 


33d 


a 


Linn Boyd, 


tt 


34th 


a 


Nathaniel P. Banks, 


Mass. 


35th 


c< 


James L. Orr, 


S. C. 


36th 


a 


Wm. Pennington, 


N. J. 


37th 


a 


Galusha A. Grow, 


Penn. 


38th 


a 


Schuyler Colfax, 


Ind.' 


39th 


a 


Schuyler Colfax, 


tt 


40th 


u 


Schuyler Colfax, 


it 


41st 


a 


James G. Blaine, 


Maine. 


42d 


a 


James G. Blaine, 


u 


43d 


tt 


James G. Blaine, 


a 


44th 


it 


f Michael C. Kerr, 
1 Samuel J. Randall, 


Ind. 




Penn. 


45th 


a 


Samuel J. Randall, 


c( 


The Clerk 


receives §4500, the Sergeant- 


■at-arms $4000, 


the DoorTcee^ 


wr ! 


$2500, the Chaplain $900. 





PRACTICAL LEGISLATION. 

In each House there are Standing Committees, to 
whom are referred the various matters of business for 
examination and report. It has been usual for the 
Speaker to appoint the House Committees, while in the 
Senate they are chosen by ballot. 

In the Forty-fourth Congress the Senate had twenty- 
eight Standing Committees, besides a number of Select 
Committees and Joint Committees. The House had 
forty-three Standing Committees. The principal Com- 
mittees are those on Ways and Means, Appropriations, 



318 THE LEGISLATIVE DEPARTMENT. 

Judiciary, Foreign Relations, Elections, Banking and 
Currency, Commerce, Post-office, Claims, Pacific Rail- 
road, Indian Affairs, Public Lands, District of Columbia, 
Public Expenditures, Xaval Affairs, Territories, Military 
Affairs, Mines and Mining, Freedmen's Affairs, Educa- 
tion and Labor, Revision of the Laws, Patents, Coin- 
age etc., Manufactures, Agriculture, Pensions, Public 
Buildings. 

In the Senate, a Standing Committee usually consists 
of nine members, and in the House, of eleven. As "all 
bills for raising Revenue" must originate in the House, 
the Senate has no Committee of Ways and Means. This 
Committee is regarded as the most important, and the 
place of Chairman is held to be next to that of Speaker 
in honor. 1 

The House often resolves itself into a Committee of 
the Whole, when the Speaker leaves the chair and a 
chairman is appointed. This gives opportunity for free 
discussion without the restraint of the strict rules of 
the House. When this committee closes its session, in 
technical terms rises, the Speaker resumes the chair, and 
the chairman of the committee reports its proceedings. 

A bill introduced into either House is supposed to be 
read three times, and at each reading to be formally 
acted upon by the House. But usually, if no objection 
is made, the bill is read twice by its title, referred to 
the appropriate committee, and ordered to be printed. 
When a bill has been reported from the committee, it 
is ordered to be engrossed and read a third time, when 
the vote is taken upon its passage. After having 
passed both Houses it is enrolled on parchment, and 
carefully examined by the committee on enrolled bills, 
who make their report, when the bill is signed by the 



1 There are three Joint Committees: on Public Printing, on En- 
rolled Bills, and on the Library. These consist of three members 
from each Hou?e. 



THE EXECUTIVE DEPARTMENT. 319 

Speaker of the House and the President of the Senate, 
and sent to the President of the United States for his 
signature. 

When a bill has been passed over the veto of the 
President by the requisite majority in each House, cer- 
tificates to that effect, signed by the Clerk of the House 
of Representatives and the Secretary of the Senate, are 
appended to the bill, in addition to the official signa- 
tures of the Speaker of the House and the President of 
the Senate. 

If a bill has been presented to the President for his 
approval, and not returned by him within the time 
prescribed by the Constitution, a note to that effect is 
appended by the Department of State. 

THE EXECUTIVE DEPARTMENT. 

The executive power is vested in a single officer, styled 
the President of the United States. We have seen that 
he must be thirty-five years of age, a native-born citi- 
zen, and a resident for fourteen years in the United 
States. He is elected for a period of four years by elec- 
tors chosen by the people in the several States. His 
term commences on the fourth of March. The salary, 
which can not be increased or diminished during the 
period for which he shall have been elected, was $25,000 
a year till the fourth of March, 1873, when Congress 
raised it to $50,000. 

The President may be re-elected; and of the fifteen 
who have been elected to the office, seven have been 
elected for a second term. 

The following is a list of the Presidents : 

George Washington, of Virginia, was unanimously 
elected the first President. Though the term properly be- 
gan on the fourth of March, he was not sworn into office 
until the thirtieth of April. He was re-elected unan- 
imously, and thus held the office till March 4th, 1797. 

John Adams, of Massachusetts, was elected by a small 



320 THE EXECUTIVE DEPARTMENT. 

majority over Thomas Jefferson ; his term expired March 
4th. 18 

Thomas Jefferson, of Virginia, was elected by the 
House of Representatives. John Adams was the oppos- 
ing candidate before the people, but in the House the 
friends of Mr. Adams voted for Aaron Burr. Mr. Jef- 
ferson was elected on the thirty-sixth ballot, and Mr. 
Burr became Vice-President. Mr. Jefferson was elected 
for a second term, his competitor being Charles C. 
Pinckney. of South Carolina. Mr. Jefferson was Presi- 
dent from 1801-1809. 

James Madison, of Virginia, was elected over Mr. C. 
C. Pinckney in 180S. and again, in 1812, over De Witt 
Clinton, of New York ; his term ending March 4th, 1817. 

James Monroe, also of Virginia, was elected, in 1816, 
over Rufus King, of Xew York, and re-elected, in 1820, 
almost unanimously. 

John Quincy Adams, of Massachusetts, was elected 
by the House of Representatives in February, 1825. 
The electoral votes were given to Andrew Jackson, J. 
Q. Adams. W. H. Crawford, and Henry Clay. The 
House, from the three highest candidates, chose Mr. 
Adams, who received the votes of thirteen States, seven 
ing for Mr. Jackson, and four for Mr. Crawford. Mr. 
Adams served the full term from March. 1825. to March, 

Andrew Jackson, of Tennessee, was elected, in 1828, 
over Mr. Adams, and again, in 1832, over Henry Clay, 
of Kentucky: holding the office for eight years, to 
March 4th. 1837. 

Martin Van Buren, of Xew York, was the successful 
candidate, in 1836. over Wm. H. Harrison, of Ohio. His 
term ended March 4th. 1841. 

William H. Harrison was elected, in 1840. over Mr. 
Van Buren. He entered upon his duties March 4th, 
1841, and died April 4th of the same year. John Tyler, 
of Virginia, the Vice-President, thus became President. 



THE PRESIDENTS. 321 

He took the oath of office April 6th, and served the re- 
mainder of the term, to March 4th, 1845. 

James K. Polk, of Tennessee, was elected, in 1844, over 
Henry Clay, and served four years, to March 4th, 1849. 

Zachary Taylor, of Louisiana, was elected over Lewis 
Cass, of Michigan, in 1848. He entered upon his duties 
March 4th, 1849, and died July 9th, 1850. Millard Fill- 
more, of New York, the Vice-President, took the oath 
of office July 10th, and served till March 4th, 1853. 

Franklin Pierce, of New Hampshire, was elected, in 
1852, over Winfield Scott, and held the office one term, 
from March, 1853, to March, 1857. 

James Buchanan, of Pennsylvania, was elected, in 
1856, over John C. Fremont and Millard Fillmore. He 
served one term, to March, 1861. 

Abraham Lincoln, of Illinois, was elected, in 1860, 
over John Bell, John C. Breckenridge, and Stephen A. 
Douglas. In 1864 he was re-elected over George B. 
McClellan, and died April 14th, 1865. Andrew Johnson, 
of Tennessee, the Vice-President, was sworn in as Pres- 
ident April 15th, and served the remainder of the 
term. 

Ulysses S. Grant, of Illinois, was elected, in 1868, over 
Horatio Seymour, of New York, and re-elected in 1872. 
His competitor in 1872, Horace Greeley, of New York, 
died November 29th. President Grant's second term 
expired March 4th, 1877. 

Rutherford B. Hayes, of Ohio, was elected, in 1876, 
over Samuel J. Tilden. The vote stood 185 and 184. 

THE DEPARTMENTS. 

The Constitution contemplates "heads of depart- 
ments." The departments are not denned in the Consti- 
tution, but have been established by law. There are now 
seven of these, viz.: The Departments of State, of the 
Treasury, of War, of the Navy, of the Post-office, of the 
Interior, of Justice. The heads of the departments are 



522 THE EXECUTIVE DEPARTMENT. 

known collectively as "The Cabinet," and with two ex- 
ceptions are called Secretaries. The head of the Post- 
office Department is called the Postmaster-General, 
and the head of the Department of Justice is the Attor- 
ney-General. 

Some of the departments are subdivided into subordi- 
nate departments, known as Bureaus. Thus, in the De- 
partment of the Interior, the Patent Office is a Bureau, 
and the Pension Office, and the Census Office. In the 
War Department there is the Bureau of Military Jus- 
tice, the Bureau of Engineers, etc. 

The salaries of the heads of departments were not 
equal at first. The Secretary of State and the Secre- 
tary of the Treasury had 83500 each ; the Secretary of 
War, S3000; the Postmaster-General, £2000: and the 
Attorney-General, 81500. 

In 1819 the salary of each of the Secretaries of the 
Departments of State, the Treasury. War, and the Navy, 
was made 86000; that of the Postmaster-General being 
84000, and that of the Attorney-General $3500. In 
1853 all were made equal 88000 each ; in 1873, $10,000; 
in 1874, $8000 again. All the' heads of departments are 
appointed by the President, with the advice and consent 
of the Senate. 

THE DEPARTMENT OF STATE. 

Prior to the adoption of the Constitution Congress 
had established the Department of Foreign Affairs, to 
be under the direction of an officer styled "Secretary 
for the Department of Foreign Affairs." In July. 1789, 
an Executive Department was established under the 
same designation, which in September was changed to 
that of the Department of State. 

The office of Secretary of State is usually regarded as 
next in importance to that of the President. The du- 
ties of the office are not very clearly defined by law, but 
are largely such as come from the instructions of the 



DEPARTMENT OF STATE. 323 

President. The Secretary is to "perform and execute 
such duties as shall from time to time be enjoined on 
or intrusted to him by the President, agreeably to the 
Constitution, relative to correspondences, commissions, 
or instructions to or with public ministers or consuls 
from the United States." 

He preserves the original of all treaties, public docu- 
ments, laws, and correspondence with foreign powers. 
He keeps the seal of the United States, and affixes it to 
all commissions which are signed by the President. He 
authenticates all proclamations of the President. He 
furnishes copies of records and papers in his office, au- 
thenticated under the seal of the department. 

He has charge of foreign relations, and conducts the 
correspondence with foreign ministers, and with our 
ministers and consuls. He is the organ of communica- 
tion of the President with the governors and other of- 
ficers of Territories. 

He issues passports to citizens wishing to visit foreign 
countries. He issues warrants for the extradition of 
criminals who are to be delivered up to foreign govern- 
ments in accordance with treaty stipulations. He pre- 
sents to the President all foreign ministers. 

The salary of the Secretary of State is now $8,000 a 
year. In 1789, it was established at $3500. In 1799, it 
was made $5000; in 1819, $6000; in 1853, $8000; in 
1873, $10,000; and in 1874, $8000. 

The following persons have held the office of Secre- 
tary of State : 

Thomas Jefferson, Va., appointed Sept. 26, 1789. 



Edmund Randolph, 


Va., 


a 


Jan. 2, 1794. 


Timothy Pickering, 


Mass., 


u 


Dec. 10, 1795. 


John Marshall, 


Va., 


u 


May 13, 1800. 


James Madison, 


Va., 


a 


March 5, 1801. 


Robert Smith, 


Md., 


a 


March 6, 1809. 


James Monroe, 


Va., 


a 


April 2, 1811. 



324 



THE EXECUTIVE DEPARTMENT. 



John Q. Adams. 


Mass 


appointed March 5, 1817. 


Henry Clay. 


Kv.. 




March 8, 1825 


Martin Van Buren, 


HT. Y.. 




March 6. 1829. 


TT ' ~~ , -: T -• -. -,- 




« 


May 24. 1831. 


L '.:..■■ M :•„:. r_e. 


Del., 


•• 


May 29. 1833. 


John Forsyth, 


Ga., 


.. 


June 27, 1834. 


Daniel Webster, 


Mass.. 


.. 


March 5. 1841. 


Hugh - Leg :. S 


.. 


May 9, 1S43. 


Abel P. Upshur, 


Va., 




July 24, 1843. 


John C. Calhoun, 


S. C. 


.. 


March 6, 1844. 


James Buchanan, 


Penn., 


.. 


March 5, 1845. 


John M. Clayton. 


Del., 


.. 


March 7. 1849. 


Daniel Websfl 


Mass.. 




July 20, 1850. 


Edward Everett, 


Mass., 


U 


Nov. 6, 1852. 


William L. Marcy. 


N. Y. 


.. 


March 7, 1853. 


Lewi^ Cass, 


Mich., 


u 


March 6. 1857. 


Jeremiah S. Black, 


Penn., 


.. 


Dec. 17, 1860. 


William H. Seward, 


K. Y, 


u 


March 5. 1861. 


Elihu B. Washburne. 


I1L, 


.. 


March 5, 1869. 


Hamilton Fish, 


■, Y. : 




March 16, 1869. 


William M.I 


». Y., 


u 


March 10, 1877. 



It will be seen that six of these afterwards were 
elected to the presidency, viz.: Jefferson, Madison, 
Monroe, J. Q. Adams. Van Buren. and Buchanan. 
Three, Madison, Monroe, and Adams, passed from the 
office of Secretary of State to that of President. 

In 1853 an Assistant Secretary was authorized; in 
1866, a second; and in 1874, a third. Each receives a 
salar $3500. 



AMBASSADORS AND OTHER PUBLIC MINISTERS. 

All persons who are sent abroad to represent our gov- 
ernment are connected with the Department of State. 
These representatives are of different grades, though it 
is not easy to draw the lines that distinguish them. 
The Constitution speaks of "Ambassadors," and the 



DEPARTMENT OF STATE. 325 

act of August 18th, 1856, states the compensation which 
ministers of this class shall receive. Mr. Gillet says: 
" The federal government has never sent an ambassador 
to any foreign government, and, it is said, has never 
received a foreign representative who was strictly such. 
France, Russia, Great Britain, Austria, and Spain are 
the only modern governments who have sent ambas- 
sadors to other governments. Prussia has never done 
so." 1 

The act of 1856, referred to above, provides for the 
compensation of the different classes of ministers ; Am- 
bassadors and Envoys Extraordinary and Ministers 
Plenipotentiary are entitled to receive the full com- 
pensation named; Ministers Resident and Commission- 
ers, seventy-five per centum ; Charges d' Affaires, fifty 
per centum ; and Secretaries of Legation, fifteen per 
centum. Judging from the salaries paid, the Envoy 
Extraordinary and Minister Plenipotentiary is of equal 
rank with the Ambassador; and this is the formal 
designation given by our government to the highest 
class of foreign ministers. 

Envoys Extraordinary and Ministers Plenipotentiary are 
sent to thirteen governments. Four of these receive. 
$17,500 a year, viz : those to France, the German Em- 
pire, Russia, and Great Britain; seven receive $12,000, 
viz: those to Austria, Brazil, China, Italy. Mexico, 
Japan, and Spain; two $10,000, viz: those to Chili 
and Peru. 2 Hon. John Welsh is the present Minister 
to Great Britain, Hon. Edward F. Noyes to France, and 
Hon. Bayard Taylor to the German Empire. 

Ministers Resident are sent to the Argentine Republic, 
Belgium, Hawaiian Islands, Netherlands, Sweden and 
Norway, Turkey, and Venezuela. These receive each 



1 The Federal Government, p. 172, 

2 Prior to 1856, a Minister Plenipotentiary received $9000 per an- 
num salary, and $9000 outfit. 






326 THE EXECUTIVE DEPARTMENT. 

$7500 a year. One Minister Resident, with a salary of 
$10,000, is accredited to Guatemala, Costa Rica, Hon- 
duras, Salvador, and Nicaragua. A Minister Resident 
and Consul-General to Hayti receives $7500, and one to 
Liberia, $4000. 

Ministers Resident are inferior in rank to Envoys 
Extraordinary and Ministers Plenipotentiary. Their 
duties, however, are the same. The difference is prin- 
cipally in the relative importance of the governments 
to which they are sent. 

The term Commissioner has sometimes been applied 
by our government to diplomatic representatives. Com- 
missioners were formerly sent to China, Mexico, and other 
places. At present no regular diplomatic officer is styled 
a Commissioner. The title is often applied to those sent 
on special service, as in the case of the Commissioners 
who helped to frame the Treaty of Washington. 

Charges cV Affaires are sent to Denmark, Greece, Swit- 
zerland, Portugal, and Paraguay and Uruguay, with sal- 
aries of 15000 each. The Charge d'AfTaires ranks below 
the Minister Resident and Commissioner. The term 
would imply a kind of minister ad interim, rather than 
a permanent officer. Formerly, however, a majority of 
our diplomatic representatives were styled Charges 
d'AfTaires. Thus in 1849 there were eight Ministers 
Plenipotentiary, one Minister Resident (to Turkey), 
and sixteen Charges d'AfTaires. At present, as we have 
seen, our government is represented in other countries 
by thirteen Ministers Plenipotentiary, ten Ministers 
Resident, and five Charges d'AfTaires. 

The Secretary of Legation is the secretary, or clerk, to 
a foreign embassy. A Secretary of Legation is usually 
sent to every government to which is accredited a 
Minister Plenipotentiary. At Paris, London, and Ber- 
lin there are Assistant Secretaries. The Ministers to 
Chili and Japan have no Secretaries, while there is a 
Secretary at Constantinople, although the L T nited States 



DEPARTMENT OF STATE. 327 

are represented there by a Minister Resident. Some- 
times through the death or removal of the Minister, his 
duties are devolved on the Secretary of Legation; in 
which case he receives the salary of a Charge. 

Consuls are commercial rather than diplomatic agents. 
Their principal duty is to watch over the interests of 
our commerce in the ports of the different countries, and 
to protect the rights of seamen. In execution of this 
general duty, they hold the ship's papers of all Ameri- 
can vessels while in port; provide for the return home 
of those who are destitute ; they hear complaints of sea- 
men; they reclaim deserters; they appoint examiners 
for vessels reported unseaworthy ; they cause mutinous 
sailors to be arrested and sent home for trial; they re- 
quire three months extra wages to be paid to seamen 
when discharged through the sale of the vessel, one- 
third to be retained as a fund with which to send Ameri- 
can sailors home, or provide for those who are destitute ; 
they take possession of the personal property of Ameri- 
can citizens dying abroad ; they take measures for the 
saving of stranded vessels and their cargoes, etc., etc. 

In 1871 the United States had thirteen Consuls-Gen- 
eral — two of whom were also Ministers Resident, those 
to Hayti and Liberia — two hundred and sixty-six 
Consuls, and thirty-five Commercial Agents. Until the 
year 1855 these officers were compensated by fees. In 
March of that year the diplomatic and consular systems 
were remodeled, and salaries are now paid in all the 
more important ports. Fees are collected, but they are 
accounted for to the government. Consuls receive from 
$1000 to $6000 per annum. Most Consuls who are paid 
by fees, or who receive small salaries, are at liberty to 
transact business for themselves ; others are prohibited 
from so doing. 

The title Consul- General was not used till 1855. Such 
officers are now sent to British India, Canada, China, 
Cuba, Egypt, France, the German Empire, Great Britain, 



328 THE EXECUTIVE DEPARTMENT, 

Hayti. Italy. Liberia. Mexico, and Turkey. Their sala- 
ries range from $2000 to 86000. 

THE TREASURY DEPARTMENT. 

This department was established in 1789. Its head 
is the Secretary of the Treasury. The original act .pro- 
vided also for a Comptroller, an Auditor, a Treasurer, 
a Register, and an Assistant to the Secretary. 

It is the duty of the Secretary to digest and prepare 
plans for the improvement and management of the rev- 
enue, and for the support of public credit : to superin- 
tend the collection of the revenue; to decide on the 
forms of keeping accounts and making returns; to grant, 
under certain limitations, all warrants for money to be 
issued from the treasury in pursuance of appropriations 
by law ; and. generally, to perform all such services rel- 
ative to the finances as shall be required. 

The power and influence of this department have in- 
creased with the growth of the country in wealth and 
population, and it has been still more enhanced by the 
great increase of the national debt, the establishment 
of the system of internal revenue, the issue of a legal 
tender paper currency, and the establishment of the 
national banking system. 

The salary of the Secretary of the Treasury has been 
the same as that of the Secretary of State : in 1789, 
83500; in 1799, 85000; in 1819, $6000; in 1853, 88000; 
in 1873. 810.000: in 1874, $8000. 

The following is a list of Secretaries, with the date 
of their appointment : 

Alexander Hamilton, X. Y., appointed Sept. 11, 1789. 

Oliver YVolcott, 

Samuel Dexter, 

Albert Gallatin, 

George W. Campbell. 

Alexander J. Dallas. 

William H. Crawford, Ga., 



Conn., 


" 


Feb. 3, 1795. 


Mass., 


u 


Dec. 31, 1800. 


Penn., 


u 


Jan. 26, 1802. 


Tenn., 


a 


Feb. 9, 1814. 


Penn., 


u 


Oct. 6, 1814. 


Ga., 


a 


March 5, 1817 



SECRETARIES OF THE TREASURY. 



329 



Richard Rush, Perm., appointed March 7, 1825. 

Samuel D. Ingham, 

Louis McLane, 

William J. Duane, 

Roger B. Taney, 1 

Levi Woodbury, 

Thomas Ewing, 

Walter Forward, 

John C. Spencer, 

George M. Bibb, 

Robert J. Walker, 

William M. Meredith, 

Thomas Corwin, 

James Guthrie, 

Howell Cobb, 

Phillip F. Thomas, 

John A. Dix, 

Salmon P. Chase, 

William P. Fessenden, 

Hugh McCulloch, 

Alexander T. Stewart, 2 

George S. Boutwell, 

William A. Richardson, 

Benjamin H. Bristow, 

Lot M. Morrill, 

John Sherman, 

There are two Assistant Secretaries. The salary is 
$4500. 

BUREAUS IN THE TREASURY DEPARTMENT. 

The work in this department is performed by vari- 
ous officers, distributed in bureaus as follows : office of 
First Comptroller, Second Comptroller, First Auditor, 
Second Auditor, Third Auditor, Fourth Auditor, Fifth 
Auditor, Sixth Auditor, Treasurer, Register, Commis- 



Penn., 


u 


March 6, 1829. 


Del., 


u 


Aug. 8, 1831. 


Penn., 


u 


May 29, 1833. 


Md., 


a 


Sept. 23, 1833. 


N. H., 


a 


June 27, 1834. 


Ohio, 


a 


March 5, 1841. 


Penn., 


a 


Sept. 13, 1841. 


N. Y., 


u 


March 3, 1843. 


Ky., 


u 


June 15, 1844. 


Miss., 


a 


March 5, 1845. 


Penn., 


iC 


March 7, 1849. 


Ohio, 


a 


July 20, 1850. 


Ky., 


u 


March 7, 1853. 


Ga., 


u 


March 6, 1857. 


Md., 


u 


Dec. 12, 1860. 


N. Y., 


u 


Jan. 11, 1861. 


Ohio, 


u 


March 5, 1861. 


Maine, 


a 


July 1, 1864. 


Ind., 


u 


March 7, 1865. 


N. Y., 


a 


March 5, 1869. 


Mass., 


a 


March 12, 1869. 


Mass., 


a 


March 17, 1873. 


Ky., 


a 


June 2, 1874. 


Maine, 


u 


July 7, 1876. 


Ohio, 


a 


March 8, 1877. 



1 Rejected by the Senate. 

2 Resigned, being ineligible as an importer. 



C. G. 28. 



330 THE EXECUTIVE DEPARTMENT. 

sioner of Customs, Comptroller of the Currency, Com- 
missioner of Internal Revenue, Bureau of Statistics, 
the Mint, Bureau of Engraving and Printing. 

It is the duty of the Comptrollers to examine all ac- 
counts settled by the Auditors, and to countersign 
warrants drawn upon the Treasurer by the heads of 
the different departments. Having the final adjudica- 
tion of accounts involving vast sums of money, the 
Comptrollers hold a most responsible office, requiring 
great capacity as well as the strictest integrity. 

The office of Comptroller was created in 1789, and in 
1817 a Second Comptroller was provided for. The First 
Comptroller examines all accounts settled by the First 
and Fifth Auditors, and certifies the balances arising 
thereon to the Register. He countersigns all warrants 
drawn by the Secretary of the Treasury. He decides 
any cases appealed from the decision of the Sixth 
Auditor, and superintends the recovery of all debts to 
the United States. He receives $5000 a year. 

The Second Comptroller examines the accounts settled 
by the Second, Third, and Fourth Auditors, and certi- 
fies the balances to the Secretary of the department in 
which the expenditure has been incurred. He counter- 
signs all warrants drawn by the Secretaries of the War 
and Navy Departments. (Those from the Department 
of the Interior are divided between the two Comptrol- 
lers.) The Second Comptroller receives 85000 a year. 

THE AUDITORS. 

The act of 1789, establishing a Treasury Department, 
provides for a single Auditor, who was to receive all 
public accounts, to certify the balance, and transmit 
the accounts, with the vouchers and certificates, to the 
Comptroller for his decision. In 1817, four additional 
Auditors were authorized, and the work was divided 
among them. In 1836, a Sixth Auditor was added. 
Each Auditor receives a salarv of S3600. 



AUDITORS OF THE TREASURY. 331 

The First Auditor examines the accounts accruing in 
the Treasury Department, and those connected with the 
salaries of civil officers, territorial accounts, judiciary- 
expenses, contingent expenses of the Senate and House 
of Representatives, etc. 

The Second Auditor receives accounts relating to the 
pay and clothing of the army, the subsistence of officers, 
bounties and premiums, military and hospital stores, 
the contingent expenses of the War Department, and 
those pertaining to Indian affairs. 

The Third Auditor lias charge of accounts relative to 
the subsistence of the army, the Quartermaster's depart- 
ment, and, generally, all accounts of the War Depart- 
ment other than those provided for. 

The Fourth Auditor receives all accounts accruing in 
the Department of the Navy. 

The Fifth Auditor receives the accounts of the Depart- 
ment of State, including the diplomatic and consular 
agents; the contingent expenses of the Post-office De- 
partment ; the expenses of the Census ; and the expenses 
of assessing and collecting the Internal Revenue. 

The office of Sixth Auditor was created in 1836. His 
duties are partly those of an Auditor and partly those of 
a Comptroller. He certifies balances to the Postmaster- 
General instead of to one of the Comptrollers. He is 
styled an Auditor of the Treasury for the Post-office 
Department, and has direct official relations to both 
these departments. The other Auditors transmit their 
statements to the Comptrollers for revision and final 
decision, but the Sixth Auditor's decisions are final, ex- 
cept special appeal is taken to the First Comptroller. 

The office of Treasurer was created in 1789. It is his 
duty to receive and keep the moneys of the United 
States, and to disburse the same upon warrants drawn 
by the Secretary of the Treasury, countersigned by the 
First Comptroller, and recorded by the Register. In 
1846 certain rooms and vaults in the new Treasury 



332 THE EXECUTIVE DEPARTMENT. 

buildings were appropriated to the use of the Treasurer, 
which, with other apartments provided as places of de- 
posit of the public money, were constituted * : The Treas- 
ury of the United States." Provision was made for the 
appointment of four Assistant Treasurers — at New York, 
Boston, Charleston, and St. Louis — and the treasurers 
of the mints at Philadelphia "and Xew Orleans were to 
act as such, having the care of the public moneys de- 
posited with them. When the national banks were 
established, in 1863, the Secretary of the Treasury was 
authorized to designate them as depositaries of public 
moneys, except receipts from customs, and they could be 
employed as financial agents of the government. 

The signature of the Treasurer is on all the treasury- 
notes issued by the United States, and on all the postal 
or fractional currency. Mr. F. E. Spinner held this 
office from 1860 to 1875. The salary is $6000. 

Besides those mentioned above, there are Assistant 
Treasurers at Baltimore, Cincinnati, Chicago, and San 
Francisco. Their salaries are as follows : New York, 
); Boston. Philadephia. St. Louis, Baltimore, Cin- 
cinnati, Chicago, 84500; Xew Orleans, §4000: San 
Francisco, §5500. 

The office of Register was created in 1789. It was 
made his duty to keep all accounts of the receipts and 
expenditures, and of all debts due to or from the L^nited 
States; to preserve with their vouchers accounts which 
have been finally adjusted ; and to record all warrants 
for the receipts or payment of moneys at the treasury, 
and certify the same thereon. He signs all stocks and 
bonds of the United States, and superintends their issue. 
He signs all treasury-notes, and "keeps the great ledgers 
which show the whole receipts and expenditures of the 
government."' His salary is 84000. 

There was no Commissioner of Customs until 1849, 
when certain acts and powers relating to the receipts 
from customs and accounts of collectors and other 



TREASURY BUREAUS. 333 

officers, which had before devolved on the First Comp- 
troller, were transferred to this new officer. His salary 
is $4000. 

In 1863 a separate bureau was established in the 
Treasury Department, called the Bureau of Currency, to 
be under the direction of an officer denominated the 
Comptroller of the Currency. The act establishing this 
bureau was the "Act to provide a National Currency, 
secured by a pledge of United States Bonds, and to 
provide for the circulation and redemption thereof," 
passed February 25th, 1863, and subsequently super- 
seded by an act for the same purpose, passed June 
3d, 1864. 

It is the duty of the Comptroller to see that all 
banking associations established under this act are 
organized and managed according to law; to provide 
the banks with notes for circulation; to send agents 
to examine into their condition ; to close up the affairs 
of such as fail to pay their notes ; and report annually 
to Congress their condition, etc. 

Since the organization of the national banking sys- 
tem, the number of banks organized, to November 1st, 
1876, was 2343; of these forty-nine have failed, and two 
hundred and seven have gone into voluntary liquida- 
tion; leaving 2087 in existence at that time. The sal- 
ary of the Comptroller of the Currency is $5000. 

Bureau of Internal Revenue. — The act establishing this 
bureau, the head of which is styled Commissioner of In- 
ternal Revenue, was passed in 1862. A similar office was 
created in 1813, and the officer was styled Commissioner 
of Revenue ; it was abolished, however, by the act of 
December 23d, 1817. For a period of five years, com- 
mencing with 1863, the receipts into the treasury from 
Internal Revenue largely exceeded those from Customs, 
but they are now much diminished. In the year end- 
ing June, 1866, the receipts from this source were three 
hundred and nine millions of dollars; in the year 



334 THE EXECUTIVE DEPARTMENT. 

ending June, 1872, they were but one hundred and 
thirty millions. For the year ending June, 1877, the 
income was one hundred and eighteen millions. The 
Internal Revenue taxes have been repealed for the 
most part, except those on tobacco, on malt and spirit- 
uous liquors, and a few stamp duties. 

The salary of the Commissioner is $6000. Formerly 
there were three Deputy Commissioners : there is now 
but one. His salary is $3200. 

The act establishing the Bureau of Internal Revenue 
provided for the appointment of an Assessor and' a Col- 
lector in each collection district, and for twenty-five 
Supervisors. The office of Assessor ceased July 1st, 1873, 
and the duties are devolved on the Collectors. 

In 1866, a Bureau of Statistics was established, the 
Director of which is to prepare the annual report on 
the statistics of commerce and navigation, and exports 
and imports; and to prepare and publish monthly re- 
ports of various statistics. His salary is $2400. 

By act of February 12th, 1873, The Mint of the United 
States was established as a Bureau of the Treasury De- 
partment, the chief officer to be styled The Director of 
the Mint. He is to have the general supervision of all 
mints and assay offices. His salary is $4500 and trav- 
eling expenses. The Superintendents of the mints at 
Philadelphia and San Francisco also receive $4500 
each ; those at Carson, Denver, and New Orleans, 
smaller salaries. 

The Bureau of Engraving and Printing was established 
in 1874. The design is to have executed under its su- 
pervision the internal revenue stamps, the national 
bank notes, and the notes, bonds, and securities of the 
United States. 

The office of the Coast Survey is connected with the 
Treasury Department. It has for its object the prep- 
aration of charts prepared from actual survey of the 
entire sea-coast of the United States. There have been 



THE WAR DEPARTMENT. 335 

but four Superintendents since the work was begun in 
1807, viz., F. R. Hassler, A. D. Bache, Benjamin Pierce, 
and C. P. Patterson. The salary is $6000. The surveys 
of the Great Lakes are under the control of the War 
Department. 

In 1852, the Light-house Board was constituted. It 
consists of three officers of the army, three of the navy, 
and two civilians of high scientific attainments, with 
the Secretary of the Treasury as ex-officio president. To 
this board are committed all duties pertaining to the 
construction and superintendence of light-houses, light- 
vessels, beacons, buoys, etc. The number of light-houses, 
stake lights, etc., in 1876, was nine hundred and 
seventy-four; and the number of light-keepers nine 
hundred and ninety-one. 

In the collections of customs many persons are em- 
ployed in connection with the different custom houses. 
The chief officer is the Collector. The Naval Officer and 
the Surveyor have important duties, which are not very 
clearly indicated by their names. They are appointed 
only in the larger ports. All these officers are paid by 
fees, but their compensation is limited as follows : Col- 
lector, $6000; Naval Officer, $5000; Surveyor, $4500. 

The Supervising Architect has the general charge of 
planning and constructing all United States Buildings, 
as custom-houses, court-houses, post-offices, marine hos- 
pitals, mints, etc. His salary is $4500. 

THE WAR DEPARTMENT. 

The office of Secretary of War was created in 1789. 
Such a department existed before the adoption of the 
Constitution, and "an ordinance for ascertaining the 
powers and duties of the Secretary at War" was passed 
by the Continental Congress, January 27th, 1785. The 
Department of the Navy was not established till 1798, 
and up to that time the duties of the Secretary of War 
extended to naval as well as military affairs. 



S36 



THE EXECrTlYE DEPARTMENT. 



The salary the Secretary of War was for thirty 

years $500 less than those of the Secretaries of State 
and the Treasury, being $3000 in 1789, and $4500 in 

1799. In 1S19 the salaries of the four - - — 
made equal — $6000. In 1853 they were nia.de $8000; 
in 1S73. $10,000: and in 1874. fSGOO. 
The office has been held by the following persons : 



Henry Knox. M: 
Timothy Pickering, Mi 
John McHenry, Md., 
John Marshall, 
Samuel Dexter, Mass 
Roger Griswold, Conn., 
Henry Dearborn, M.- 
William Eu ; : Mass 
John Armstrong, X. Y.. 
James Mom: Va., 
William H. Crawford. Ga.. 
Isaac Shelby, Ky.. 
George Graham, Va.. 
John C. Calhoun, 
James Barbour, Va... 
Peter B. Port X. Y.. 
John H. Eaton, T-enn., 
Lewis Cass. Mich., 
Benjamin F. Butler, N. Y.. 
Joel R. Poinsett, 
John Bell, 7 \ 
John McLean, Ohio, 
John C. Spencer, N*. Y.. 
James M. Porter. Penn.. 
William Wilkins, Penn., 
William L. Marcy. X. Y.. 



Jan. 2,1" 

Mav 7, 1800L 1 
May 13, 1800. 
7- 

Mai 80L 

March 7, 1809. 
Jan. 13, 1813u 
Sep* .- 1814, 
March I :~: r 
March r : " 
April 7,1817 

: : ; ::■_- 

March " 1825 
May 26, 1828. 

March B 182 
Aug. 1. 1831. 

March ~ :-- 
March 5 1841 

Ck : 12 :^4i. 
March 8, 184 

?^ - m 

March " :^ r 



dominated May 7. Action postponed by Senate. Appointed 
Secretary of Slate May IS. 2 Declined to serve. s Declined. 



SECRETARIES OF AVAR. 



337 



George W. Crawford, 


Ga., appointed 


March 7, 1849. 


Charles M. Conrad, 


La., 


tl 


Aug. 15, 1850. 


Jefferson Davis, 


Miss., 


a 


March 5, 1853. 


John B. Floyd, 


Va., 


u 


March, 6, 1857. 


Joseph Holt, 


Ky., 


u 


Jan. 18, 1861. 


Simon Cameron, 


Penn., 


u 


March 5, 1861. 


Edwin M. Stanton, 


Penn., 


a 


Jan. 15, 1862. l 


Ulysses S. Grant, 


EL, ad 


interim , 


Aug. 12, 1867. 


Edwin M. Stanton, 


Penn., 


appointed Jan. 13, 1868. 2 


John M. Schofield, 


Mo., 


u 


May 29, 1868. 


John A. Rawlins, 


111., 


a 


March 12, 1869. 


William W. Belknap, 


Iowa, 


a 


Nov. 1, 1869. 


Alphonso Taft, 


Ohio, 


a 


March 9, 1876. 


J. Donald Cameron, 


Penn., 


u 


May 22, 1876. 


George W. McCrary, 


Iowa, 


a 


March 10, 1877. 



The War Department is divided into various subdi- 
visions, in which are employed many men, civilians 
as well as those connected with the army. These dif- 
ferent offices, which will be understood from their 
titles, are as follows: 

The Office of the Adjutant-General, 
The Office of the Quartermaster-General^ 
The Office of the Commissary-General, 
The Office of the Paymaster-General, 
The Office of the Surgeon-General, 
The Office of the Chief-of-Engineers> 
The Ordnance Office, 
The Signal Office, 
The Bureau of Military Justice, 

The Signal Office and the Bureau of Military Justice, 
were established in 1866, The Chief Signal officer has 



1 Suspended by President Johnson August 12th, 1867. 

2 Restored by the Senate. Resigned May 26th, 1868. 

C. G. 29. 



338 



THE EXECUTIVE DEPARTMENT. 



the rank and pa)- of a colonel of cavalry. The Bureau of 
Military Justice is in charge of a Judge- Advocate-Gen- 
eral, who has the rank and pay of a Brigadier-General. 

The Military Academy at West Point, in the State 
of New York, is connected with the War Department. 
It was established in 1802. At first, provision was 
made for only ten cadets, but in 1812 Congress author- 
ized the number to be increased to two hundred and 
fifty. The present corps of cadets consists of one from 
each Congressional District, one from each Territory, 
one from the District of Columbia, and ten from the 
United States at large; these are all appointed by the 
President. They must be between the ages of seven- 
teen and twenty-two, and pledge themselves, with the 
consent of parents or guardians, to serve eight years 
unless sooner discharged. 

The superintendent and most of the instructors are 
officers of the army. The Academy is wholly supported 
by the government, an allowance being made to each 
cadet sufficient to pay his entire expenses of clothing, 
board, etc. The appropriation voted for the Academy 
for the year ending June 30th, 1878, was $293,000. 

By act of July loth, 1870, the army officers receive 
yearly pay as follows; 

General, $13,500. Captain, not mounted, $1800. 

Lieut. -General, $11,000. Regimental Adjutant, $1800. 

Major-General, $7500. Regimental Q. M., $1800. 

Brigadier-General, $5500. 1st Lieut., mounted, $1600. 

Colonel, $3500. 1st Lieut., not " $1500. 

Lieut.-Colonel, $3000. 2d Lieut., mounted, $1500. 

Major, $2500. 2d Lieut., not " $1400. 

Captain, mounted, $2000. Chaplain, $1500. 

To each commissioned officer below the rank of Brig- 
adier-General, the pay is increased ten per centum 
for every term of five years service, but the increase is 
not to exceed forty per centum. Officers retired from 



SECRETARIES OF THE NAVY. 



service receive seventy-five per centum of the pay of 
the rank upon which they are retired. The pay of 
privates is thirteen dollars a month, with one dollar a 
month added for the third year of enlistment, one more 
for the fourth, and one for the fifth. The officers are 
paid monthly. 



DEPARTMENT OF THE NAVY. 

This department was established by act of Congress, 
April 30th, 1798, its chief officer being styled the Secre- 
tary of the Navy. 

In 1861 an Assistant Secretary was authorized, but 
the office expired March 4th, 1869. 

The following persons have been Secretaries of the 
Navy : 



George Cabot, 


Mass., appointed May 3, 1798. * 


Benjamin Stoddart, 


Md., 


May 21, 1798. 


Robert Smith, 


Md., 


' July 15, 1801. 


Jacob Crowninshieid, 


Mass., ' 


< March 2, 1805. 


Paul Hamilton, 


S. C, 


' March 7, 1809. 


William Jones, 


Penn., ' 


Jan. 12, 1813. 


B. W. Crowninshieid 


, Mass., ' 


Dec. 17, 1814. 


Smith Thompson, 


N. Y. ; 


Nov. 9, 1818. 


John Rodgers, 


Md., 


Sept. 1, 1823. 1 


Samuel L. Southard, 


N. J., 


Sept. 16, 1823. 


John Branch, 


N. C, 


' March 9, 1829. 


Levi Woodbury, 


N. H., 


May 23, 1831. 


Mahlon Dickerson, 


N. J., 


' June 30, 1834. 


James K. Paulding, 


N. Y., 


June 30, 1838. 


George E. Badger, 


N. C, 


March 5, 1841. 


Abel P. Upshur, 


Va., 


Sept. 13, 1841. 2 


David Henshaw, 


Mass., l 


1 July 24, 1843. 


Thomas W. Gilmer, 


Va., 


Feb. 15, 1844. 


John Y. Mason, 


Va., 


1 March 14, 1844. 



declined. 2 Killed, February 28th, on U. S. Steam Frigate 
Princeton, by bursting of a cannon. 



340 



THE EXECUTIVE DEPARTMENT. 



Mass., 


appointed 


March 10, 1845 


Va., 


u 


Sept. 9, 1846. 


Va.. 


u 


March 7, 1849. 


X. C, 


u 


July 20. 1850. 


Md., 


u 


July 22. 1852. 


X. C. 


a 


March 7. 185a 


Conn., 


u 


March 6, 1857. 


Conn., 


u 


March 5, 1861. 


Penn., 


u 


March 5, 1869. 


X. J, 


u 


June 25, 1869. 


Ind., 


a 


March 10, 1877. 



George Bancroft, 
John Y. Mason, 
William B. Preston, 
William A. Graham, 
John P. Kennedy, 
James C. Dobbin, 
Isaac Toucey. 
Gideon "Welles, 
Adolph E. Borie, 
George M. Robeson, 
Rich"d W.Thompson. 

The salary of the Secretary of the Navy was at first 
S3000. In 1799 it was made' $4500: in 1819. 86000: in 
18-53. $8000; in 1873. $10,000; and in 1874, 88000. 

By act of July 5th. 1862, there were established eight 
Bureaus in the Navy DejDartnient. for each of which a 
chief should be appointed from the list of the officers 
of the Navy by the President. These chiefs of Bureaus 
hold their office for four years. 

The Burma of Yards and I)och<. — Vessels are built and 
repaired at Navy Yards, of which the government has 
nine, viz.. at Kittery, Maine; 1 Charlestown. Mass.: 1 New 
London. Conn.: Brooklyn. X. Y-; League Island. Penn.; 
Washington. D. C: Norfolk, Va.: Pensacola, Fla.; and 
Mare Island, Cal. There are Naval Stations at Sack- 
ett's Harbor, X. Y.. and at Key West, Fla. This bureau 
has charge of the construction and maintenance of all 
docks, piers, etc., within the Navy Yards. It has charge 
also of the Naval Arsenals, and of the Naval Asylum. 
The expenditures for the year ending June 30th, 1876, 
were Sl,712,000. 



1 The Navy Yard at Kittery. Maine, is the same as that known 
as the Portsmouth X. H. Xavy Yard. The one at Charlestown is 
often spoken of as at Boston. Both names, Boston and Charlestown, 
are applied to the same Navy Yard in the same statute. U. S. Stat- 
utes at Large, XVII, p. 552. 



DEPARTMENT OF THE NAVY. 341 

The Bureau of Equipment and Recruiting. — This bureau 
supplies vessels in commission with rigging, sails, anch- 
ors, fuel, etc. It has charge of recruiting all seamen, 
landsmen, and boys for the service; and the charge 
also of receiving-ships and recruiting rendezvous. 

The Bureau of Navigation. — This bureau has supervis- 
ion of what relates to the Hydrographic Office, the Naval 
Observatory, the Nautical Almanac, the Signal Office, and 
Naval Apprentices. 

The Observatory was established in 1842, under the 
name of " Depot for Naval Charts and Instruments." 
The Superintendent is Rear-Admiral John Rodgers. 

The Bureau of Ordnance. — To this bureau belongs the 
general charge of providing and storing guns and am- 
munition of every kind. Under its direction experi- 
ments are made to test new species of ordnance and 
ammunition. The subject of torpedoes has recently 
received much attention. 

The Bureau of Medicine and Surgery. — There are eight 
naval hospitals and one laboratory under the charge 
of this bureau, which also furnishes all medical sup- 
plies for the department. 

The Bureau of Provisions and Clothing. — The name of 
this bureau indicates its duties. 

Bureau of Steam Engineering. — All that pertains to the 
steam machinery by which vessels are impelled comes 
under the charge of this bureau. 

Bureau of Construction and Repair. — This bureau has 
charge of all that relates to planning, building, and 
repairing vessels, both wood and iron, as distinct 
from the engines and machinery by which they are 
impelled. 

The Naval Academy. — This institution, which sustains 
to the Navy the same relation the Military Academy at 
West Point does to the Army, seems not to have been 
established by an act of Congress, but to have been 
commenced by the Navy Department without formal 



342 TElE EXECUTIVE DEPARTMENT. 

- -lation. The first action of Congress regarding it 
is found in the act making appropriations for the 
naval service. August 10th, 1846. This provides that 
of the money appropriated for " pay of the navy "' and 
"contingent expenses enumerated." an amount not ex- 
ceeding 828.200 may be expended under the direction 
of the Secretary of the Navy for repairs, improvements, 
and instruction, at Fort Severn. Annapolis. Maryland. 
In March. 1847. a like sum was appropriated for the 
same purposes, "and for the purchase of land for the 
use of the naval school at that place, not exceeding 
twelve acres."" 

The students, who are called cadet-midshipmen, must 
be. when appointed, not under fourteen years of age, 
nor over eighteen. There may be one from each con- 
ional district, and one from each Territory, with 
ten at large. The latter are appointed by the Presi- 
dent, the others are nominated to the Secretary of the 
Navy by the Representatives and Delegates in Congress. 
From 1862 to 1867 two were authorized from every con- 
gressional district. 

The course of study has been four years, but it is now 
changed to six. commencing with the class entering in 
1873. They become midshipmen on graduating, and 
are promoted to ensigns as vacancies occur, promotion 
being according to class rank. 

A course of study has been provided for cadet- 
engineers, to be appointed, to the number of fifty, 
by the Secretary of the Navy. The course embraces 
four years of study at the Academy, and two years of 
service in naval sea-steamers. Their pay is that of 
midshipmen. 

The appropriation for the Naval Academy for the 
year ending June 30th. 1874. is §193.457; of which 
$64,000 is for "contingent expen- 

The yearly pay of the Officers of the Navy is as 
follow 



DEPARTMENT OF THE NAVY. 343 

On leave, or 
At sea. On shore duty. waiting orders. 

Admiral, $13,000 813,000 $13,000 

Vice-Admiral, 9,000 8,000 6,000 

Rear-Admiral, 6,000 5,000 4,000 

Commodore, 5,000 4,000 3,000 

Captain, 4,500 3,500 2,800 

Commander, 3,500 3,000 2,300 

Lieutenant-Corn., 2,800 2,400 2,000 

Lieutenant, 2,400 2,000 1,600 

Master, 1,800 1,500 1,200 

Ensign, 1,200 1,000 800 

Midshipman. 1,000 800 600 

Surgeon, Paymaster, 

and Chief Engineer, 2,800 2,400 2,000 

Fleet Surgeon, Pay- 
master, and Chief 

Engineer, 4,400 4,400 4,400 

Passed Ass't Surgeon, 
Paymaster, and 

Chief Engineer, 2,000 1,800 1,500 

Assistant Surgeon, 
Paymaster, and 

Chief Engineer, 1,700 1,400 1,000 

Chaplain, 2,500 2,000 1,600 

Professor of Mathe- 
matics, and Civil 
Engineer, 2,400 2,400 1,500 

Most of those who are below the grade of Command- 
ers have their pay increased after five years of service 
by from $200 to $400 a year ; with some this increase is 
but once, but with others the pay is increased at the 
end of each five years up to twenty. 

The pay of officers retired after forty years' service, or 
on attaining the age of sixty-two years, or from inca- 
pacity resulting from long and faithful service, from 
wounds or injuries received in the line of duty, or from 



344 THE EXECUTIVE DEPARTMENT. 

sickness or exposure therein, is seventy-five per centum 
of the sea-pay of their grade when retired; in all other 
cases the pay of retired officers is one-half the sea-pay. 

The pay of " seamen " in the navy is twenty dollars 
a month ; of " ordinary seamen," sixteen dollars : of 
u landsmen," fourteen dollars ; of " boys," from eight to 
ten dollars. 

Until September, 1862, a spirit ration was allowed in 
the navy; from that time it was abolished, and five 
cents a day allowed in place of it. This allowance was 
abolished from June 30th, 1870. Thirty cents a day is 
now the commutation price of a navy ration. 

DEPARTMENT OF THE INTERIOR. 

This department was established by act of Congress, 
March 3d, 1849. The act is entitled "An Act to estab- 
lish the Home Department." A department was pro- 
posed under that name in 1789. The duties of the 
department relate to various offices which have been 
transferred to it from other departments. It is less 
homogeneous, therefore, than the others. 

At its establishment the Patent Office and the Census 
Office were transferred to it from the Department of 
State; the Land Office, the charge of Mines, and the ac- 
counts of officers of the Courts, from the Department of 
the Treasury; the charge of Indian affairs from the 
Department of War; the charge of Pensions from the 
Departments of War and the Xavy: and the care of 
Public Buildings from the President. Subsequently it 
was charged with the duty of receiving and distribu- 
ting public documents, and with duties relating to Ter- 
ritories, which had been performed by the State De- 
partment. The Department of Education, which was 
at first independent, has been made an office in this 
department. 

The salary has been the same as the other Secre- 
taries have received, being now $8000. An Assistant 



DEPARTMENT OF THE INTERIOR. 



345 



Secretary was authorized in 1862. His compensation 
is now $3500. 

The Secretaries have been as follows : 
Thomas Ewing, Ohio, appointed March 7, 1849. 



Sept. 12, 1850. 
March 7, 1853. 
March 6, 1857. 1 
March 5, 1861. 
Jan. 8, 1863. 
May 15, 1865. 
July 27, 1866. 
March 5, 1869. 
Nov. 1. 1870. 
Oct. 19,1875. 
March 10, 1877. 



Alexander H. H. Stuart, Va., " 

Robert McClelland, Mich., " 

Jacob Thompson, Miss., " 

Caleb B. Smith, Ind., 

John P. Usher, Ind., 

James Harlan, Iowa, " 

Orville H. Browning, 111., " 

Jacob D. Cox, Ohio, " 

Columbus Delano, Ohio, " 

Zachariah Chandler, Mich., " 
Carl Schurz, Mo., " 

The Patent Office. — This bureau is under the superin- 
tendence of a Commissioner, who is assisted by an As- 
sistant Commissioner. There is a large corps of Exam- 
iners, Assistant Examiners, Clerks, Copyists, and Labor- 
ers employed in the Patent Office. Besides the charge 
of this large force, the Commissioner has a large amount 
of judicial work to perform — in hearing and deciding 
cases relating to patents. The Commissioner receives 
$4500, and the Assistant Commissioner $3000, a year. 

The Pension Office.— By act of March 3d, 1835, the of- 
fice of Commissioner of Pensions was created for two 
years. It was extended from time to time, and made 
permanent in 1849. He was to execute, under the di- 
rection of the Secretaries of War and the Navy, such 
duties in relation to the various pension laws as might 
be prescribed by the President. 

The provisions relating to pensions are too numerous 
and complicated to allow of a clear statement regarding 
them in this treatise. An act was passed March 3d 



1 Resigned January 8th, 1861. 



346 THE EXECUTIVE DEPARTMENT. 

1873, to revise, consolidate, and amend the laws relating 
to the general subject. The salary of the Commissioner 
is $3600. 

The Land-Office. — The public lands of the United 
States which are for sale are under the care of an officer 
styled the Commissioner of the General Land-Office. 
This office was created in 1812, and it was made the 
duty of the Commissioner to attend to various matters 
touching the public lands which had before that been 
transacted in the several departments of State, of the 
Treasury, and of War. The Land-Office was placed in 
the Department of the Treasury till, on the creation of 
that of the Interior, in 1849, it was transferred to that 
department. The Commissioner's salary is 84000. 

The principal officers under the Commissioner are : 
Surveyors-General, 
Registers of Land-Offices, 
Receivers of Land-Offices. 

There are now seventeen Surveyors-General, one in 
each land district. Under their direction all the land 
is accurately surveyed and described, and thus prepared 
for sale. The United States system of surveys provides 
for the division of the lands into ranges, townships, sec- 
tions, and fractions of sections. The ranges are bounded 
by meridian lines, six miles apart, and are numbered 
east and west from a principal meridian. These are 
divided into townships, of six miles square, numbered 
north and south from a given parallel. Townships 
are divided into thirty-six sections of one mile square, 
or six hundred and forty acres. The sections are di- 
vided into quarters, which are again subdivided into 
sixteenths. 

The sections in a township are numbered, beginning 
at one in the north-east section, and proceeding West 
and East alternately, as indicated in the annexed dia- 
gram. The description of land is thus made exact to 



DEPARTMENT OF THE INTERIOR. 



847 



6 

7 


5 


4 


3 


2 


1 


8 


9 


10 


11 


12 


18 


17 


16 


15 


14 


13 


19 
30 


20 


21 


22 


23 


24 


29 


28 


27 


26 


25 


31 


32 


33 


34 


35 


36 



tracts of forty acres ; as, the N. W. % of the N. E. J- of 
Section 19, Town 27 North, Range 18 West. 

Registers are appointed 
in the several land dis- 
tricts, who receive appli- 
cations for lands in their 
districts, file receipts for 
payments, and, on the 
final payment, give to 
the purchaser a certificate 
which entitles him to a 
patent, i. e., a deed from 
the United States. For- 
merly the patent was 
signed by the President, and countersigned by the Sec- 
retary of State; 1 now a secretary is appointed by the 
President, who signs patents in his name, and they 
are countersigned by the Recorder. 

The government price of land is one dollar and a 
quarter an acre. Previous to 1800 the price was two 
dollars. For alternate reserved lands along the line of 
railroads within the limits granted by any act of Con- 
gress, the price is two dollars and fifty cents an acre. 
From 1854 to 1862 land long in market was sold at re- 
duced rates. The sale of mineral lands is regulated by 
special laws. 

The Receiver receives money or land-scrip from the 
purchaser, giving receipts therefor, which are passed 
over to the Register. 

The Register and Receiver are largely paid by fees, 
but the whole compensation must not exceed $3000. 
They are entitled to fees in cases of military warrants 
and homestead entries, as in other cases. 



1 Three patents to the Ohio Company for 1,228,168 acres, dated May 
10th, 1792, are signed by G°. Washington, and countersigned by Th: 
Jefferson. These patents, the first issued by the government to a pur- 
chaser, are in the library of Marietta College. 



348 THE EXECUTIVE DEPARTMENT. 

The Commissioner of Indian Affairs. — Until 1832 the 
business of the government relating to the Indians had 
been managed by the clerks in the War Department. 
In that year Congress authorized the President to ap- 
point a Commissioner, who should, under the direction 
of the Secretary of War, have the general superintend- 
ence of all Indian affairs. 

The Commissioner has the direction of the eight Su- 
perintendents, and a large number of agents and sub- 
agents, under whom are many teachers, mechanics, la- 
borers, etc. The salary of the Commissioner is $3000. 

The Superintendent of the Census. — The census is taken 
once in ten years. The office of Superintendent is 
not permanent, therefore ; but its duties are highly 
responsible, and require great accuracy and system. 
The census returns are of great value. The salary of 
the Superintendent is $3000. 

The Bureau of Education. — In 1867 "a Department of 
Education" was established at Washington, for the 
purpose of collecting statistics showing the condition 
and progress of education in the States and Territories, 
and of diffusing such information as should promote 
the cause of education throughout the country. In 
1868 Congress enacted that " the Department of Edu- 
cation " should cease, and that there should be estab- 
lished and attached to the Department of the Interior 
an office to be denominated The Office of Education, 
the chief officer of which should be styled the Com- 
missioner of Education, who should perform the duties 
before prescribed. His salary is $3000. 

THE DEPARTMENT OF AGRICULTURE. 

In 1862 a Department of Agriculture was established 
at Washington, the object of which was to acquire and 
diffuse among the people useful information on subjects 
connected with Agriculture. The chief officer was 
styled a Commissioner of Agriculture. Among other 



THE GENERAL POST-OFFICE. 349 

things it was provided that he should "receive and 
have charge of all the property of the agricultural 
division of the Patent Office in the Department of the 
Interior, including the fixtures and property of the 
propagating garden." 

There seems to be no more reason for calling this a 
" department " than in the case of the Office of Educa- 
tion. In his message of 1871 the President speaks of it 
in one sentence as a "department" and in another as 
the "Agricultural Bureau." For many years previous 
to 1862, the Patent Office Report was partly devoted to 
agricultural facts and statistics. 

It is noticed here, because, though nominally inde- 
pendent, it might well be considered a Bureau of the 
Department of the Interior. The salary of the Com- 
missioner is $3000. 

Miscellaneous. — The Secretary of the Interior has the 
general charge of the Penitentiary in the District of 
Columbia, and of those in the Territories. The follow- 
ing act was passed in March, 1873 : " That the Secre- 
tary of the Interior shall hereafter exercise all the 
powers and perform all the duties in relation to the 
Territories of the United States that are now by law 
or by custom exercised and performed by the Secretary 
of State." 

POST-OFFICE DEPARTMENT. 

There were arrangements for carrying letters by mail 
before the colonies separated from the mother country. 
Dr. Benjamin Franklin had the general superintend- 
ence under the British government, and in July, 1775, 
he was appointed, by the Second Continental Congress, 
" Postmaster-General of the United Colonies." When 
the Constitution went into operation, Congress, by act 
of September 22d, 1789, provided for the "temporary 
establishment of the Post-office," the regulations to be 
"the same as they last were under the resolutions and 
ordinances of the late Congress." 



350 THE EXECUTIVE DEPARTMENT. 

In 1792 an act was passed to establish a General 
Post-office. There was to be a Postmaster-General, who 
should have power to appoint an Assistant, and Deputy 
Postmasters at all places where such should be found 
necessary; he was also "to superintend the business 
of the department" in all the duties that should be 
assigned to it. This act was, indeed, limited to two 
years, but in 1794 a similar one was enacted, which 
had no limitation of time. We may say, therefore, that 
the Post-office Department has been in operation from 
the first Congress under the Constitution. 1 An act to 
revise, consolidate, and amend the statutes relating to 
the Post-office Department, containing three hundred 
and twenty-seven sections, was passed June 8th, 1872. 
The Salary of the Postmaster-General was $2000 in 1792, 
$3000 in 1799, $4000 in 1819, $6000 in 1827, $8000 in 
1853, $10,000 in 1873. and $8000 in 1874. 

It is said that the Postmaster-General did not attend 
the meetings of the Cabinet prior to the administra- 
tion of President Jackson, who invited Mr. Barry to be 
present at their meetings. The practice has been con- 
tinued from that time. 

The list of Postmasters-General is as follows : 

Samuel Osgood, Mass., appointed Sept. 26, 1789. 

Timothy Pickering, Mass., " Aug. 12, 1791. 

Joseph Habersham, Ga., " Feb. 25, 1795. 

Gideon Granger, Conn., " Nov. 28, 1801. 



1 Mr. Gillet, in his work on The Federal Government, says : " There 
has never been any statute establishing a Post-office Department. * * 
It is first spoken of as a Post-office Department in the title of an act 
in 1S25." But that title itself is, "An Act to reduce into one the 
several acts establishing and regulating the Post-office Department." 
This very title thus asserts that previous acts had established such a 
department. "We have seen above that the General Post-office was 
called a " department " in the act of 1792. An act of March, 3d, 1801, 
speaks " of the several departments of the Treasury, of "War, of the 
Navy, and of the General Post-office." 



GENERAL POST-OFFICE. 



351 



Return J. Meigs, Jr. 
John McLean, 
William T. Barry, 
Amos Kendall, 
John M. Niles, 
Francis Granger, 
Charles A. Wickliffe, 
Cave Johnson, 
Jacob Collamer, 
Nathan K. Hall, 
Samuel D. Hubbard, 
James Campbell, 
Aaron V. Brown, 
Joseph Holt, 
Horatio King, 
Montgomery Blair, 
William Dennison, 
Alexander W. Randall, 
John A. J. Creswell, 
Marshall Jewell, 
James M. Tyner, 
David M. Key, 

There are three Assistant Postmasters-General; the 
Postmaster-General appointed them until 185-3; since 
then the President and Senate. The salary is $3500. 

The First Assistant Postmaster- General has the superin- 
tendence of matters relating to the establishment and 
discontinuance of post-offices, the appointment and re- 
moval of postmasters, furnishing blanks and stationery, 
steamship lines, and international postage. His office 
is called the Appointment Office. 

Under the charge of the Second Assistant Postmaster- 
General belongs whatever relates to letting contracts 
for carrying the mails, the mode of conveyance, the 
time of arrival and departure, offices of distribution, 
etc. This is known as the Contract Office 



Ohio, 


appointed 


March 17, 1814 


Ohio, 


a 


June 26, 1823. 


Ky., 


a 


March 9, 1829. 


Ky, 


u 


May 1, 1835. 


Conn., 


u 


May 25, 1840. 


N. Y., 


U 


March 6, 1841. 


Ky., 


u 


Sept. 13, 1841. 


Tenn., 


u 


March 5, 1845. 


Vt, 


11 


March 7, 1849. 


N. Y., 


a 


July 20, 1850. 


Conn., 


u 


Aug. 31, 1852. 


Penn., 


it 


March 7, 1853. 


Tenn., 


a 


March 6, 1857. 


Ky., 


u 


March 14, 1859. 


N. H., 


u 


Feb. 12, 1861. 


Md., 


u 


March 5, 1861. 


Ohio, 


u 


Sept. 24, 1864. 


Wis., 


u 


July 25, 1866. 


Md., 


u 


March 5, 1869. 


Conn., 


« 


Aug. 24, 1874. 


Ind., 


u 


July 18, 1876. 


Tenn., 


u 


March 10, 1877. 



>-- THE EXEC I'll YE DEPAETMEST. 

The Third Assistant Postmaster-General has charge of 
the general financial business of the department, pro- 
vides stamps and stamped envelopes, receives the quar- 
terly returns from Postmasters, and superintends the 
dead-letter office. This is the Finance Office. 

The office of the Superintendent of the Mmeporder 
System is now a bureau, like the three just mentioned, 
with its chief clerk. The salary of the head of this 
bureau is $3000. 

In the office of the Superintendent of Foreign Mails 
there is also a chief clerk. The salary of the Superin- 
tendent is $3000. 

There are six Chief Clerks, viz.. in the Post-office De- 
partment, in the Appointment Office, in the Contract 
Office, in the Finance Office, in the Money-order Office, 
and in the Office of Foreign Mails. Formerly there 
was but one — in the Post-office Department — and his 
office was regarded as a bureau, and called the Inspection 
Office. He is now the clerk for the Postmaster-General, 
as the others are for the heads of the bureaus. 

DEPABTMEST OF JUSTICE. 

This department was created by act of Congress, 
June 22d, 1870. The Attorney-General is the head of 
it. While the Department of Justice has been quite 
recently established, the office of Attorney-General was 
created in 17S9; and this officer, though without a 
"department,** has always been recognized as a mem- 
ber of the Cabinet. 

The act of September 24th, 1789, made it his duty 
to prosecute and conduct all suits in the Supreme 
Court in which the United States should be concerned, 
and to give his advice and opinion upon questions of 
law when required by the President, or when requ 
by the heads of any of the departments touching any 
matters concerning their departments. 

These opinions are furnished in writing, and subee- 



DEPARTMENT OF JUSTICE. 



353 



quently printed. They now form many volumes, and 
are consulted by the various departments. 

In 1861 he was charged with the general superintend- 
ence of the attorneys and marshals of all the judicial 
districts in the United States and the Territories. 
He was also authorized to employ counsel to aid dis- 
trict-attorneys in the discharge of their duties. He 
examines the title of lands which the government 
proposes to purchase for forts, dock-yards, custom- 
houses, or other public purposes. 

In 1859 the Attorney-General was authorized to ap- 
point an Assistant. In 1868 Congress provided that, 
in place of this and three other officers, the President 
should appoint two Assistant Attorneys-General. 

Though the Attorney-General had a seat in the 
Cabinet from the first, his salary was much below 
the others. It was fixed, in 1789, at $1500 — that of 
the Secretary of War being $3000, nnd those of the 
Secretaries of State and the Treasury, $3500. In 1797, 
it was made $2000; in 1799, $3000; in 1819, $3500; in 
1830, $4000; and in 1850 it was made equal to that of 
the other members of the Cabinet— $6000. In 1853 it 
was made $8000; in 1873, $10,000; and in 1874, $8000. 

The following persons have held the office of Attor- 
ney-General : 

Va., appointed, 



Edmund Randolph, 

William Bradford, Penn., 

Charles Lee, Va., 

Theophilus Parsons, Mass., 

Levi Lincoln, Mass., 

Pvobert Smith, . Md., 

John Breckenridge, Ky., 

Cresar A. Rodney, Del., 

William Pinckney, Md., 

Richard Rush, Penn., 

William Wirt, Va, 

C. G.30. 



Sept. 26, 1789. 
Jan. 28, 1794. 
Dec. 10, 1795. 
Feb. 20, 1801. 
March 5, 1801. 
March 2, 1805. 
Aug. 7, 1805. 
Jan. 20, 1807. 
Dec. 11, 1811. 
Feb. 10, 1814. 
Nov. 13, 1817. 



354 



THE EXECUTIVE DEPARTMENT. 



J. McPherson Berrien, Ga. 



Roger B. Taney, Md., 

Benjamin F. Butler, N. Y., 

Felix Grundy, Tenn., 

Henry D. Gilpin, Penn., 

John J. Crittenden, Ky., 

Hugh S. Legare, S. C, 

John Nelson, Md., 

John Y. Mason, Va., 

Nathan Clifford, Maine, 

Isaac Toucey, Conn., 

Reverdy Johnson, Md., 

John J. Crittenden, Ky., 

Caleb Cushing, Mass., 

Jeremiah S. Black, Penn., 

Edwin M. Stanton, Penn., 

Edward Bates, Mo., 

James Speed, Ky., 

Henry Stanbery, Ohio, 

William M. Evarts, N. Y., 

E. R. Hoar, Mass., 

Amos T. Akerman, Ga., 

Geo. H. Williams, Oregon, 

Edwards Pierrepont, N. Y., 

Alphonso Taft, Ohio, 
Charles Devens, 



appointed March 9, 1829. 

July 20, 1831. 

Nov. 15, 1833. 

Sept. 1, 1838. 

Jan. 10, 1840. 

March 5, 1841. 

Sept. 13, 1841. 

July 1, 1843. 

March 5, 1845. 

Oct. 17, 1846. 

June 21, 1848. 

March 7, 1849. 

July 20, 1850. 

March 7, 1853. 

March 6, 1857. 

Dec. 20, 1860. 
' March 5, 1861. 

Dec. 14, 1864. 
' July 23, 1866. 

July 15, 1868. 

March 5, 1869. 

July 8, 1870. 
< Jan. 9, 1872. 

April 26, 1875. 

May 22, 1876. 
March 10, 1877. 



Mass., " 

The Solicitor-General is next in rank to the Attor- 
ney-General. The act of 1870 continued the two 
Assistant Attorneys-General already authorized by the 
act of 1868. The act also transferred to the Department 
of Justice the Solicitor of the Treasury and his assist- 
ants, and the Solicitor of Internal Revenue, from the 
Treasury Department, the Naval Solicitor from that of 
the Navy, and the Examiner of Claims from the De- 
partment of State. All these officers were to be ap- 
pointed by the President and Senate. 



DEPARTMENT OF JUSTICE. 355 

The Attorney-General makes an annual report to 
Congress. He may require any officer of the depart- 
ment to perform any duties required of the department 
or any officer thereof; and the officers of the law depart- 
ment, under his direction, shall give all opinions and 
render all services necessary to enable the President 
and the officers of the Executive Department to dis- 
charge their duties. The Secretaries of the various 
departments are not to employ counsel at the expense 
of the United States, but to call upon the Department 
of Justice for the legal service they need. 

In 1871 a third Assistant Attorney-General was au- 
thorized, with the same salary as the others. There is 
now a fourth, called the Assistant Attorney-General of 
the Post-office Department. 

The following are the principal officers in the Depart- 
ment of Justice, with their salaries : 

Attorney-General, $8,000. 

Solicitor-General, 7,000. 

Assistant Attorney-General, 5,000. 

Ass't Att.-Gen. at the Court of Claims, 5,000. 
Ass't Att.-Gen. in the Department of the Interior, 5,000. 

Ass't Att.-Gen. in the Post-office Department, 4,000. 

Solicitor of Internal Revenue, 4,500. 

Naval Solicitor, 3,500. 

Examiner of Claims, 3,500. 

Solicitor of Treasury, 4,500. 

Assistant Solicitor, 3,000. 

There are many persons employed in the various 
departments at Washington, under different designa- 
tions, as Clerks, Copyists, Messengers, Laborers, etc. 
The great body of Clerks are divided into classes 
known as first, second, third, and fourth. The first 
class receive $1200 a year; the second, $1400; the third, 
$1600; and the fourth, $1800. There are a few who, as 
Disbursing Clerks, or Chiefs of Divisions, etc., receive 



356 THE JTDICIAL DEPART3fE>~7. 

- -:S00. The Exar. -chief in the 
2:-o~:e : J 

or more— $2501 Fema] prists rener- 

>900 a year. Messengers - x ^ Assistant 

Mess _ .md Laborers 672C 

rm "v::::asy. 

A fall account of the United States been 

Ebnner part o: this week. 

The following is i lis! of Chief Jnati ses : the - - 
preme Court of the Uni: States 

lows Fay He\ :. appointed September 26th, 

" v He was confirm I I E Eng- 

land, April 19th, 1794 Resigned as Thief Just 

John Rutlz: -z South Carolina, appointed July 1st 
1795 in re ss : Senate, and pre : the Aug 

term of the Court. Reject the Si tc December 

15th : " 

William Cushdvb, Massachusetts appoinl I hj I 
dent and Senate. January 27th 1" ; 

: " z 7 Ellswobs b appointed March 4th, 

Extraordinary and 
Plen: ry : Prance, February 27th 1" 

- _ led as Ch: : ' stice, 

John Jay. N V ppointed by President aud 

Senai Dec Eml sr 191 

John Marshal] inia, appointed January 1 

1 v I He held the office nearly thirty-five y 

- -:. m ' 

B. Taney. Maryland, appointed March 1 
He pi 3, till his d 

- ber 12th 

5au P. Cbas . \ appointed December 

- n" R. W January 21si 

1874 



ASSOCIATE JUSTICES OF THE SUPREME COURT. 357 



The following is a list of the Associate Justices : 







Term of Senice. 


John Rutledge, 


S. C, 


1789 to 1791. 1 


William Cushing, 


Mass.. 


1789 to 1810. 2 


James Wilson, 


Perm., 


1789 to 1798. 2 


John Blair, 


Va., 


1789 to 1796. 1 


Robert H. Harrison, 


Md., 


1789 to 1790. 1 


James Iredell, 


N. C, 


1790 to 1799. 2 


Thomas Johnson, 


Md., 


1791 to 1793. 1 


William Patterson, 


N. J., 


1793 to 1806. 2 


Samuel Chase, 


Md., 


1796 to 1811. 2 


Bushrod Washington, 


Va., 


1798 to 1829. 2 


Alfred Moore, 


N. C, 


1799 to 1804. 1 


William Johnson, 


s. c, 


1804 to 1834. 2 


Brockholst Livingston 


, N. Y., 


1806 to 1823. 2 


Thomas Todd, 


Ky., 


1807 to 1826. 2 


Levi Lincoln, 


Mass., 


Declined. 


John Quincy Adams, 


Mass., 


Declined. 


Gabriel Duval, 


Md., 


1811 to 1835. 1 


Joseph Story, 


Mass., 


1811 to 1845. 2 


Smith Thompson, 


N. Y., 


1823 to 1843. 2 


Robert Trimble, 


Ky., 


1826 to 1828, 2 


John McLean, 


Ohio, 


1829 to 1861. 2 


Henry Baldwin, 


Penn., 


1830 to 1846. 2 


James M. Wayne, 


Ga., 


1835 to 1867. 2 


Philip P. Barbour, 


Va., 


1836 to 1841. 2 


John Catron, 


Tenn., 


1837 to 1865. 2 


William Smith, 


Ala., 


Declined. 


John McKinley, 


Ala., 


1837 to 1852. 2 


Peter V. Daniel, 


Va., 


1841 to I860. 2 


Samuel Nelson, 


N. Y., 


1845 to 1872. 3 


Levi Woodbury, 


N. H.> 


1845 to 1851. 2 


Robert C. Grier, 


Penn., 


1846 to 1870. 3 


Benjamin R. Curtis, 


Mass., 


1851 to 1857. 1 


John A. Campbell, 


Ala., 


1853 to 1856. 1 



Resigned. 2 Died. 



Resigned, with salary continued. 



358 



THE JUDICIAL DEPARTMENT. 



Nathan Clifford, Maine 

Noah H. Swayne, Ohio, 

Samuel F. Miller, Iowa, 

David Davis, 111., 

Stephen J. Field, Cal., 

William Strong, Penn., 

Joseph P. Bradley, N. J., 

Ward Hunt, N. Y., 

John M. Harlan, Ky., 



Term of 

1858 to — 

1862 to 

1862 to 

1862 to 1877 

1863 to - — 
1870 to 
1870 to 
1872 to 
1877 to 



The thirty-eight States are divided into nine Judi- 
cial Circuits, each having its own Circuit Judge, and to 
each one of which a Justice of the Supreme Court is 
allotted by order of that Court. The Circuits are as 
follows : 

1st. Maine, Massachusetts, New Hampshire, Khode 
Island. 

2d. Connecticut, New York, Vermont. 

3d. Pennsylvania, New Jersey, Delaware. 

4th. Maryland, West Virginia, Virginia, North Caro- 
lina, South Carolina. 

5th. Georgia, Florida, Alabama, Mississippi, Louisi- 
ana, Texas. 

6th. Ohio, Michigan, Kentucky, Tennessee. 

7th. Indiana, Illinois, Wisconsin. 

8th. Minnesota, Iowa, Missouri, Kansas, Arkansas, 
Nebraska, Colorado. 

9th. California, Oregon, Nevada. 

The Judges of the Circuits are as follows : 



Circuit. 


Supreme Judge. 


Circuit Judge. 


1st. 


Nathan Clifford, 


George F. Shepley. 


2d. 


Ward Hunt, 


Samuel Blatchford. 


3d. 


William Strong, 


William McKennan 


4th. 


Chief Justice, 


Hugh L. Bond. 



1 Resigned, March, 1877. 



COMPENSATION OF JUDGES. 359 



Circuit. 


Supreme Judge. 


Circuit Judge. 


5th. 


Joseph P. Bradley, 


William B. Woods. 


6th. 


Noah H. Swayne, 


John Baxter. 


7th. 


John M. Harlan, 


Thomas Drummoncl 


8th. 


Samuel F. Miller, 


John F. Dillon. 


9th. 


Stephen J. Field, 


Lorenzo Sawyer. 



The salary of the Chief Justice of the Supreme Court 
is $10,500; that of each Associate Justice, $10,000. The 
Circuit Judges receive each $6000, and the District 
Judges, fifty-one in number, from $3500 to $5000 each. 
The Chief Justice of the Supreme Court of the District 
of Columbia receives $4500, and each of the Associate 
Justices the same sum ; the same salaries are paid in 
the Court of Claims. 

In each organized Territory there are a Chief Justice 
and two Associates, appointed by the President and 
Senate for four years. They receive $2600 each. 

The Marshal and Reporter of the Supreme Court are 
appointed by the Court, and receive salaries; the for- 
mer $3000, the latter $2500. 

The Attorney and Marshal for the District Courts, 
who are officers of the Circuit Courts also, are appointed 
by the President and Senate, and receive each a salary 
of $200 and fees. 



CHAPTER VIII. 



THE STATE GOVERNMENTS. 



In chapter VI an account has been given of the 
twenty-four States which have been admitted to the 
Union since the adoption of the Constitution. The 
thirteen original States were colonies until the Decla- 
ration of Independence. By that act the individual 
colonies were transformed into States, and the thirteen 
United Colonies assumed their position as a nation, 
under the name of the United States. The colonies 
had exercised some of the powers of government, while 
they acknowledged a common allegiance to Great Brit- 
ain. " By the Declaration of Independence the sover- 
eignty of the thirteen colonies passed from the crown 
to the people dwelling in them, not as an aggregate 
body, but as forming States endowed with the functions 
necessary for their separate existence ; also States in 
Union?" x 

The nation began its existence on the fourth day of 
July, 1776; and on the same day each of the thirteen 
colonies was transformed into a State — became an in- 
tegral part of the nation. Each of the new States be- 
came such, when, having adopted a constitution, it was 
admitted into the Union by Congress. But the old 
thirteen did not become States by the formation of a 
constitution, nor by a Congressional vote of admission. 
They were made States by the Declaration of Independ- 
ence. No one of the thirteen was a State prior to that 



^rothingham's Rise of the Republic, p. 561. 

(360) 



NO STATES BEFORE THE DECLARATION. 361 

day, though a few of them had established temporary 
forms of government, by the recommendation of Con- 
gress. Each was a State from that day, though some 
formed no State constitutions until months, and, in 
some cases, years, had elapsed. Massachusetts remained 
under her colonial, charter till 1780, Connecticut till 
1818, and Rhode Island till 1842. 

In the latter part of 1775 Congress had recommended 
to New Hampshire, South Carolina, and Virginia, to 
modif}' their local governments, to "continue during 
the dispute with Great Britain." And in May, 1776, 
a like recommendation was made to "the several colo- 
nies where no governments sufficient to the exigencies 
of their affairs had been established." In accordance 
with these recommendations New Hampshire, South 
Carolina, Virginia, and New Jersey — all being royal col- 
onies — provided themselves with governments adapted 
to their necessities. But, in at least three of these four 
cases, the governments were expressly declared to be 
temporary, to continue until the unhappy differences 
between Great Britain and America should be settled. 
Of the body that framed the constitution of Virginia 
in 1776, Mr. Jefferson says: "They received in their 
creation no powers but what were given to every leg- 
islature before or since. They could not, therefore, pass 
an act transcendent to the powers of other legislatures." 
And of the instrument itself he says : " It pretends to 
no higher authority than the other ordinances of the 
same session." Such instruments could hardly be called 
constitutions. 

Including the four already mentioned, the thirteen 
local governments were modified, or established, as 
follows : 

New Hampshire, January 5, 1776. 

South Carolina, March 26, 1776. 

Virginia, June 29, 1776. 

New Jersey, July 2, 1776. 

CO. 31. 



362 THE STATE GOVERNMENTS. 

Delaware, September 20, 1776. 

Pennsylvania, September 28, 1776. 

Maryland, November 8, 1776. 

North Carolina, December 18, 1776. 

Georgia, February 5, 1777. 

New York, April 20, 1777. 

Massachusetts, March 2, 1780. 

Connecticut, September 16, 1818. 

Rhode Island, November 23, 1842. 

Most of the States have altered their constitutions, 
some of them a number of times. Connecticut and 
Rhode Island had no other constitutions than their co- 
lonial charters till 1818 and 1842; and the constitutions 
then adopted still remain. Massachusetts, which formed 
her first constitution in 1780, adopted a new one in 1820, 
which is still in force. 

The State constitutions resemble each other in their 
general provisions, while they differ in particulars. 
The Constitution of Illinois, adopted in 1870, may 
be taken as fairly illustrating the general principles 
of these instruments. It contains fourteen articles, as 
follows : 



I. 


Boundaries of the State. 


II. 


Bill of Rights. 


III. 


Distribution of Powers. 


IV. 


Legislative Department. 


V. 


Executive Department. 


VI. 


Judicial Department. 


VII. 


Suffrage. 


VIII. 


Education. 


IX. 


Revenue. 


X. 


Counties. 


XL 


Corporations. 


XII. 


Militia. 


XIII. 


Warehouses. 


XIV. 


Amendments to the Constitution. 



THE CONSTITUTION OF ILLINOIS. 363 

The Bill of Rights contains twenty sections, relating 
to liberty of conscience, trial by jury, etc. 

The Powers are three — the Legislative, the Executive, 
and the Judicial. 

The Legislative power is vested in a General Assembly, 
consisting of a Senate and House of Representatives, 
both to be elected by the people. 

The State is to be divided every ten years into fifty- 
one senatorial districts, in each of which a Senator is 
to be elected for four years. Half of the Senators go 
out every two years. Three Representatives are elected 
from each senatorial district, to serve two years. The 
election is on the Tuesday next after the first Monday 
in November of the even years. (This is the day for 
the election of members of Congress throughout the 
United States, commencing with 1876. The presiden- 
tial election will come also on the same day.) 

A Senator must be twenty-five years of age, and a 
Representative twenty-one; and each must have been 
a citizen of the United States five years, and a resident 
of the district two years. 

The Representatives are elected on the principle of 
"minority representation." "Each qualified voter may 
cast as many votes for one candidate as there are Rep- 
resentatives to be elected, or may distribute the same, 
or equal parts thereof, among the candidates, as he shall 
see fit." The legislature holds annual sessions. 

A majority is a quorum in each House. The yeas and 
nays must be called on the request of five members 
in the Houso, and two in the Senate. The vote on 
the final passage of every bill must be by yeas and 
nays. No bill can become a law without the votes of 
a majority of the members elected to each House. No 
act can contain more than one subject, which must be 
expressed in its title. No law takes effect till the first 
of July after its passage, unless the legislature, by a 
vote of two-thirds of all the members elected, direct 



364 THE STATE GOVERNMENTS.' 

otherwise. Special legislation is forbidden in enumer- 
ated cases, and in all others where general laws are 
applicable. The General Assembly can not authorize 
lotteries, or gift enterprises ; and the sale of such tickets 
must be prohibited by law. 

The Executive Department consists of a Governor, Lieu- 
tenant-Governor, Secretary of State, Auditor, Treasurer, 
Superintendent of Public Instruction, and Attorne}'- 
General. These hold office for four years, except the 
Treasurer, who holds for two years, and is ineligible 
for two years next after the end of his term. The Gov- 
ernor and Lieutenant-Governor must be thirty years of 
age. The Governor may grant pardons after conviction. 
He may veto bills, but the veto may be overcome by 
the votes of two-thirds of the members elected to each 
House. The Executive officers are elected at the same 
time with the Legislative. 

The Judicial powers are vested in one Supreme Court, 
Circuit Courts, County Courts, Justices of the Peace, 
Police Magistrates, and such Courts as may be created 
by law for cities and towns. The Supreme Court con- 
sists of seven Judges, elected from seven districts, for 
nine years. Four make a quorum, and the concurrence 
of four is necessary for every decision. They choose one 
of their number Chief Justice. A Judge of this Court 
must be thirty years of age. There is one Circuit Judge 
in each judicial circuit, which must contain a popula- 
tion of not less than 100,000. The Circuit Judge must 
be twenty-five years of age, and is elected for six years. 
Both Supreme and Circuit Judges are elected on the first 
Monday of June. The County Judge is elected for four 
years, and a State's Attorney in each county for the 
same time. Counties with 50,000 inhabitants may have 
Probate Courts. Any Judge may be removed from office 
by the votes of three-fourths of the members elected to 
each House. All Judges of courts of record below the 
Supreme Court make written reports to the Supreme 



THE CONSTITUTION OF ILLINOIS. 365 

Judges each year of such defects and omissions in the 
laws as their experience may suggest; and the Judges 
of the Supreme Court make report to the Governor, an- 
nually, of any defects and omissions in the constitution 
and laws, with appropriate forms of bills to cure such 
defects in the laws. The salaries of the Judges of the 
Supreme and Circuit Courts, and those of the Execu- 
tive officers named in the constitution, and the pay of 
the members of the Legislature, can not be increased 
or diminished during their term of office. 

The right of Suffrage belongs to every male citizen 
of the United States, of the age of twenty-one years, 
having resided one year in the State, ninety da} r s in 
the County, and thirty days in the election district. 
All votes must be by ballot. 

The constitution encourages Education by requiring 
the General Assembly to provide an efficient system of 
free schools. Public schools must not be sectarian, and 
public property must not be granted for sectarian pur- 
poses. County Superintendents are authorized. 

The article on Revenue provides that all persons and 
corporations shall pay taxes in proportion to the value 
of their property; but peddlers, auctioneers, etc., ma}^ be 
taxed as the General Assembly ma} 7 direct by general 
law. Property used exclusively for agricultural and 
horticultural societies, for school, religious, cemeten^, and 
charitable purposes, may be exempted from taxation. 
No municipal indebtedness may be incurred exceeding 
five per centum on the value of the taxable property. 

The County Officers are a Judge, Sheriff, County Clerk, 
Clerk of the Circuit Court (who may be ex-nfficio Re- 
corder of deeds), Treasurer, Surveyor, and Coroner, who 
hold office for four years, except the Treasurer, Sheriff, 
and Coroner, who hold for two years. The General As- 
sembly shall provide by general law for township or- 
ganization, under which any county may organize by a 
majority vote; in this case the fiscal affairs of the 



366 THE STATE GOVERNMENTS. 

county may be transacted as the General Assembly shall 
direct. Other counties will be managed by a " Board 
of County Commissioners," consisting of three officers, 
elected for three years. 

Corporations can be created only by general laws. In 
elections for directors of incorporated companies, cumu- 
lative voting is allowed. The State can not own stock 
in any banking company. No act of the General As- 
sembly creating corporations with banking powers shall 
go into effect till approved by a majority of the electors. 
If a banking law be enacted, bills must be secured by 
deposit, to the full amount thereof, of stocks of the 
United States or Illinois, to be rated at ten per cent be- 
low their par value. Railroad corporations must keep 
open to public inspection their books of transfer of 
stocks, and the directors must make annual reports, un- 
der oath, of their doings, including whatever may be 
prescribed by law. Xo railroad corporation shall con- 
solidate its property with another owning a parallel or 
competing line; and no consolidation shall take place 
without public notice, of at least sixty days, to all stock- 
holders. Railways are declared public highways, and 
reasonable maximum charges shall be established by 
law. Stock dividends and other fictitious increase of 
capital stock are void. 

Article twelfth relates to the Militia, and article thir- 
teenth to Warehouses. 

Amendments to the constitution may be made by a 
constitutional convention, or be proposed by the legisla- 
ture. If two-thirds of the members of each House vote 
to call a convention, the question shall be submitted to 
the people ; and any amendments made by a convention 
thus called shall be submitted to the electors for ap- 
proval. The legislature, by a vote of two-thirds of the 
members elected to each House, mqiy propose amend- 
ments, which shall be voted on by the people; but 
amendments to more than one article can not be pro- 



TERM OF OFFICE OF THE GOVERNOR. 367 

posed at the same session of the legislature, nor to the 
same article oftener than once in four years. 

Besides the fourteen articles there are three separate 
sections. The first forbids the legislature from ever re- 
leasing the Illinois Central Railroad from its obligations 
to the State. The second provides that there shall be 
no municipal subscriptions to railroads or private cor- 
porations. The third provides that the Illinois and 
Michigan Canal shall never be sold or leased without 
a vote of the electors, and that the General Assembly- 
shall never loan the credit of the State, or make ap- 
propriations from the treasury thereof, in aid of rail- 
roads or canals. 

The State governments resemble each other and 
the general government in having the three divis- 
ions, Executive, Legislative, and Judicial. They differ 
in many particulars, as the power of the Executive, 
the right of suffrage, the mode of election, the term 
of office, etc. 

In Maine, New Hampshire, and Massachusetts, there 
is an Executive Council — ranging from five to eight in 
number — with whom the Governor advises as to ap- 
pointments, pardons, etc. 

In each of the New England States, the Governor is 
elected annually. In New York, Ohio, Wisconsin, Iowa, 
Minnesota, and Kansas, the term is two years ; in New 
Jersey it is three; and in Pennsylvania, Delaware, 
Maryland, Illinois, California, and Oregon, it is four. 
In some States the Governor has the veto power. 

In most of the States the Secretary of State, Treasurer, 
Auditor, Attorney- General, etc., are elected by the people. 
In Maine, these officers are all chosen by the legisla- 
ture. In New Hampshire, the Governor appoints the 
Attorney-General; and the Treasurer and Secretary of 
State are chosen by the legislature. In New Jersey, the 
Governor and Senate appoint the Secretary of State, 



868 



THE STATE GOVERNMENTS. 



and the legislature choose the Treasurer. In Maryland, 
the Secretary of State is appointed by the Governor, the 
Comptroller is elected by the people, and the legislature 
choose the Treasurer. 

In all the New England States the Senators and Repre- 
sentatives are elected annually. In Ohio, Michigan, etc., 
oney are elected for two years. In New York, the Sen- 
ators are for two years, and the Representatives for one. 
In New Jersey, the Senators are chosen for three years; 
the Representatives, for one. In Pennsylvania, Del- 
aware, Maryland, Indiana, and Illinois, the Senators 
are for four years, and the Representatives for two. 
The ratio of the number of Senators to that of Repre- 
sentatives is usually about as one to three; though in 
Massachusetts, it is as one to six ; in Vermont, as one to 
eight; and in New Hampshire, as one to twenty-five. 
In most of the States the two Houses are called the Gen- 
eral Assembly, but in Massachusetts and New Hamp- 
shire they are called the General Court. In New York, 
the lower House is called The Assembly; and in Vir- 
ginia and West Virginia, The House of Delegates. 

In Maine, the Judges of the Supreme Court are ap- 
pointed by the Governor and Council, for seven years. 
In New Hampshire and Massachusetts, they are ap- 
pointed in the same way, and hold office during good 
behavior. In Vermont, the legislature elect the Judges 
annually. In Connecticut, the legislature elect the 
Judges for eight years. In New Jersey, the Supremo 
Judges are appointed by the Governor and Senate for 
seven years, and the Circuit Judges for six. In Dela- 
ware, the Governor appoints all the Judges, and they 
hold office during good behavior. The Supreme Judges 
are elected by the people, in Ohio, for five years; in 
Wisconsin, Iowa, Kansas, and Oregon, for six; in Indi- 
ana and Minnesota, for seven; in Michigan, for eight; 
in Illinois, for nine; in Maryland and California, for 
ten; in Pennsylvania, for twenty-one. 



THE JUDGES — SUFFRAGE. 369 

By the new constitution of Pennsylvania the Gov- 
ernor and Supreme Judges can not be re-elected. 

In a number of States suffrage was formerly limited 
to "white" persons, but the Fifteenth Amendment to 
the Constitution renders this limitation inoperative. 
Twenty-five States require the voter to be a citizen of 
the United States; the remaining twelve make the 
legal declaration of intention to become a citizen suffi- 
cient. A residence of one year in the State is generally 
required, though a number make six months sufficient ; 
and Kentucky requires two years. Georgia, Nevada, 
Massachusetts, and New Hampshire, make the pay- 
ment of taxes a requisite for voting, except in certain 
cases. The same is the case in Delaware, for those 
over twenty-two years of age. In Connecticut, those 
can not vote who are "unable to read an article in 
the constitution or any section of the statutes of the 
State ; " and in Massachusetts, those " unable to read 
the constitution in the English language, and write 
their names, unless prevented by physical debility, 
or over sixty years of age when the constitution was 
adopted." Fifteen States exclude from suffrage those 
who are insane; ten, those who are idiotic; seven, 
those who are " non compos mentis" or "of unsound 
mind;" eight, those under guardianship; seven, those 
who are paupers ; one, those supported in an alms-house 
or asylum. 

These particulars give a general idea of the sphere 
of the State governments, and show in what respects 
their constitutions differ. It will be seen that, ordi- 
narily, the citizen has a more direct and personal rela- 
tion to the laws of the State than to those of the na- 
tion. For many years prior to the recent war we were 
conscious of our relation to the nation chiefly by our 
Congressional and Presidential elections. Taxes were 
paid to the State officials; and the laws which regulated 
the daily life of the people came from the State legisla- 



370 THE STATE GOVERNMENTS. 

tures and not from Congress. But during the war the 
nation became to every man a distinct reality. 

In general, the State governments have to do with 
matters that are local and municipal, in distinction 
from those which are general and national. The well- 
being of the people is, of course, dependent upon both 
governments, though State legislation bears more di- 
rectly than national upon their prosperity and happi- 
ness. There are some matters, controlled by the States, 
in regard to which uniformity is desirable; as, for ex- 
ample, the descent of property. It is unfortunate that 
a will, made and executed according to the forms of law 
in one State, should subsequently be found to be invalid 
because the death of the testator had occurred in an- 
other State, to which he had removed. , 

The American people, thus, constitute one nation 
with whom is the sovereignty; but they have a gov- 
ernment which is two-fold — exists in two departments. 
To each of these departments the nation has com- 
mitted certain governmental trusts. It might have 
distributed these trusts differently; given more to the 
one and less to the other. The nation may alter the 
distribution when it pleases; for, strictly, the sover- 
eignty does not belong to the government of a nation, 
but to the nation itself, which has established the gov- 
ernment. The people are undoubtedly competent to 
change the character of the government, and give it 
such form as they may think will most promote their 
interests. But as the people of the United States are 
also the people of the States severally, we may rest 
satisfied that no change will ever be made which the 
people of the States do not believe will be for their 
common good. 



THE DECLARATION OF INDEPENDENCE. 



IN CONGRESS, JULY 4, 1776. 

THE UNANIMOUS DECLAKATION OF THE THIRTEEN 
UNITED STATES OF AMERICA. 



When, in the course of human events, it becomes necessary for 
one people to dissolve the political bands which- have connected 
them with another, and to assume, among the powers of the earth, 
the separate and equal station to which the laws of nature and of 
nature's God entitle them, a decent respect to the opinions of man- 
kind requires that they should declare the causes which impel them 
to the separation. 

We hold these truths to be self-evident : that all men are created 
equal ; that they are endowed by their Creator with certain unalien- 
able rights; that among these are life, liberty, and the "pursuit of 
happiness; that, to secure these rights, governments are instituted 
among men, deriving their just powers from the consent of the 
governed ; that, whenever any form of government becomes destruc- 
tive of these ends, it is the right of the people to alter or to abolish 
it, and to institute a new government, laying its foundation on such 
principles, and organizing its powers in such form, as to them shall 
seem most likely to effect their safety and happiness. Prudence, 
indeed, will dictate, that governments long established, should not be 
changed for light and transient causes; and, accordingly, all expe- 
rience hath shown that mankind are more disposed to suffer, while 
evils are sufferable, than to right themselves by abolishing the forms 
to which they are accustomed. But when a long train of abuses and 
usurpations, pursuing invariably the same object, evinces a design to 
reduce them under absolute despotism, it is their right, it is their 
duty, to throw off such a government, and to provide new guards for 
their future security. Such has been the patient sufferance of these 
colonies, and such is now the necessity which constrains them to 

(i) 



11 APPENDIX. 

alter their former systems of government. The history of the present 
King of Great Britain is a history of repeated injuries and usurpa- 
tions, all having in direct object the establishment of an absolute 
tyranny over these States. To prove this, let facts be submitted to 
a candid world. 

He has refused his assent to laws the most wholesome and neces- 
sary for the public good. 

He has forbidden his governors to pass laws of immediate and 
pressing importance, unless suspended in their operations till his 
assent should be obtained ; and when so suspended, he has utterly 
neglected to attend to them. 

He has refused to pass other laws for the accommodation of large 
districts of people, unless those people would relinquish the right 
of representation in the legislature — a right inestimable to them, 
and formidable to tyrants only. 

He has called together legislative bodies at places unusual, un- 
comfortable, and distant from the depository of their public records, 
for the sole purpose of fatiguing them into compliance with his 
measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause 
others to be elected, whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exercise; 
the state remaining, in the meantime, exposed to all the dangers of 
invasions from without, and convulsions within. 

He has endeavored to prevent the population of these States; for 
that purpose obstructing the laws for the naturalization of foreigners; 
refusing to pass others to encourage their migrations hither, and 
raising the conditions of new appropriations of lands. 

He has obstructed the administration of justice by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone for the tenure 
of their offices, and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms 
of officers to harass our people and eat out their substance. 

He has kept among us, in times of peace, standing armies, with- 
out the consent of our legislatures. 

He has affected to render the military independent of, and superior 
to, the civil power. 

He has combined with others to subject us to a jurisdiction foreign 
to our constitution, and unacknowledged by our laws; giving his 
assent to their acts of pretended legislation : 



THE DECLARATION OF INDEPENDENCE. Ill 

For quartering large bodies of armed troops among us ; 

For protecting them, by a mock trial, from punishment for any 
murders which they should commit on the inhabitants of these States ; 

For cutting off our trade with all parts of the world ; 

For imposing taxes on us without our consent ; 

For depriving us, in many cases, of the benefits of trial by jury ; 

For transporting us beyond seas to be tried for pretended offenses; 

For abolishing the free system of English laws in a neighboring 
province, establishing therein an arbitrary government, ar.d enlarging 
its boundaries, so as to render it at once an example and fit instru- 
ment for introducing the same absolute rule into these colonies; 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the forms of our governments; 

For suspending our own legislatures, and declaring themselves 
invested with power to legislate for us in all cases whatsoever. 

He has abdicated government here by declaring us out of his 
protection, and waging Avar against us. 

He has plundered our seas, ravaged our coasts, burned our towns, 
and destroyed the lives of our people. 

He is at this time transporting large armies of foreign mercenaries 
co complete the works of death, desolation, and tyranny, already 
begun with circumstances of cruelty and perfidy, scarcely paralleled 
in the most barbarous ages, and totally unworthy the head of a 
civilized nation. 

He has constrained our fellow-citizens, taken captive on the high 
seas, to bear arms against their country, to become the executioners 
of their friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrection among us, and has endeav- 
ored to bring on the inhabitants of our frontiers the merciless Indian 
savages, whose known rule of warfare is an undistinguished destruc- 
tion of all ages, sexes, and conditions. 

In every stage of these oppressions we have petitioned for redress 
in the most humble terms; our repeated petitions have been an- 
swered only by repeated injury. A prince whose character is thus 
marked by every act which may define a tyrant, is unfit to be the 
ruler of a free people. 

Nor have we been wanting in attentions to our British brethren. 
We have warned them, from time to time, of attempts by their legis- 
lature to extend an unwarrantable jurisdiction over us. We have 
reminded them of the circumstances of our emigration and settlement 
here. We have appealed to their native justice and magnanimity, 
and "we have conjured them, by the ties of our common kindred, to 
disavow these usurpations, which would inevitably interrupt our con- 



IV APPENDIX. 

nections and correspondence. They, too, have been deaf to the voice 
of justice and of consanguinity. We must, therefore, acquiesce in the 
necessity which denounces our separation, and hold them, as we hold 
the rest of mankind — enemies in war; in peace, friends. 

We, therefore, the representatives of the United States of 
America, in General Congress assembled, appealing to the Supreme 
Judge of the world for the rectitude of our intentions, do, in the name 
and by the authority of the good people of these colonies, solemnly 
publish and declare, That these United Colonies are, and of right 
ought to be, Free and Independent States; that they are absolved from 
all allegiance to the British crown, and that all political connection 
between them and the state of Great Britain is, and ought to be, 
totally dissolved ; and that, as Free and Independent States, they have 
full power to levy war, conclude peace, contract alliances, establish 
commerce, and to do all other acts and things which Independent States 
may of right do. And for the support of this Declaration, with a 
firm reliance on the protection of Divine Providence, we mutually 
pledge to each other our lives, our fortunes, and our sacred honor. 

JOHN HANCOCK. 

New Hampshire. — Josiah Bartlett, William Whipple, Matthew 
Thornton. 

Massachusetts Bay. — Samuel Adams, John Adams, Bobert Treat 
Paine, Elbridge Gerry. 

Bhode Island, etc. — Stephen Hopkins, William Ellery. 

Connecticut. — Koger Sherman, Samuel Huntington, William 
Williams, Oliver Wolcott. 

New York. — William Floyd, Philip Livingston, Francis Lewis, 
Lewis Morris. 

New Jersey. — Richard Stockton, John Witherspoon, Francis 
Hopkinson, John Hart, Abraham Clark. 

Pennsylvania. — Robert Morris, Benjamin Rush, Benjamin 
Franklin, John Morton, George Clymer, James Smith, George 
Taylor, James Wilson, George Ross. 

Delaware. — Csesar Rodney, George Read, Thomas M'Kean. 

Maryland.— Samuel Chase, William Paca, Thomas Stone, Charles 
Carroll, of Carrollton. 

Virginia.— George Wythe, Richard Henry Lee, Thomas Jefferson, 
Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter 
Braxton. 

North Carolina. — William Hooper, Joseph Hewes, John Penn. 

South Carolina. — Edward Rutledge, Thomas Hey ward, Jr., 
Thomas Lynch, Jr., Arthur Middleton. 

Georgia. — Button Gwinnett, Lyman Hall, George Walton. 



ARTICLES OF CONFEDERATION 



Articles of Confederation and Perpetual Union between the 
States of New Hampshire, Massachusetts Bay, Rhode 
Island and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, and Georgia. 



Article I. — The style of this confederacy shall be, " The United 
States of America." 

Art. II. — Each State retains its sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right, which is not by 
this confederation expressly delegated to the United States in Con- 
gress assembled. 

Art. III. — The said States hereby severally enter into a firm 
league of friendship with each other, for their common defense, the 
security of their liberties, and their mutual and general welfare, 
binding themselves to assist each other against all force offered to, 
or attacks made upon them, or any of them, on account of religion, 
sovereignty, trade, or any other pretense whatever. 

Art. IV. — The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different States in this 
Union, the free inhabitants of each of these States, paupers, vaga- 
bonds, and fugitives from justice excepted, shall be entitled to all 
privileges and immunities of free citizens in the several States; and 
the people of each State shall have free ingress and regress to and 
from any other State, and shall enjoy therein all the privileges of 
trade and commerce, subject to the same duties, impositions, and 
restrictions, as the inhabitants thereof respectively; provided that 
such restrictions shall not extend so far as to prevent the removal of 
property imported into any State, to any other State, of which the 
owner is an inhabitant; provided also, that no imposition, duties, or 

(v) 



VI APPENDIX. 

restriction, shall be laid by any State on the property of the United 
States, or either of them. 

If any person guilty of, or charged with, treason, felony, or other 
high misdemeanor in any State, shall flee from justice, and be found 
in any of the United States, he shall, upon demand of the governor 
or executive power of the State from which he fled, be delivered up, 
and removed to the State having jurisdiction of his offense. 

Full faith and credit shall be given, in each of these States, to the 
records, acts, and judicial proceedings of the courts and magistrates 
of every other State. 

Art. V. — For the more convenient management of the general 
interests of the United States, delegates shall be annually appointed 
in such manner as the legislature of each State shall direct, to meet 
in Congress on the first Monday in November, in every year, with a 
power reserved to each State to recall its delegates, or any of them, 
at any time within the year, and to send others in their stead, for the 
remainder of the year. 

No State shall be represented in Congress by less than two, nor 
by more than seven members; and no person shall be capable of 
being a delegate for more than three years, in any term of six years ; 
nor shall any person, being a delegate, be capable of holding any 
office under the United States, for wliicn he, or another for his bene- 
fit, receives any salary, fees, or emolument of any kind. 

Each State shall maintain its own delegates in any meeting of 
the States and while they act as members of the committee of 
the States. 

In determining questions in the United States in Congress assem- 
bled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached 
or questioned in any court or place out of Congress; and the mem- 
bers of Congress shall be protected in their persons from arrests and 
imprisonments during the time of their going to and from, and attend- 
ance on, Congress, except for treason, felony or breach of the peace. 

Art. VI. — No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any em- 
bassy from, or enter into any conference, agreement, alliance, or 
treaty, with any king, prince or state; nor shall any person holding 
any office of profit or trust under the United States, or any of them, 
accept of any present, emolument, office, or title of any kind what- 
ever, from any king, prince, or foreign state; nor shall the United 
States, in Congress assembled, or any of them, grant any title of 
nobility. 

No two or more States shall enter into any treaty, confederation, 



ARTICLES OF 'CONFEDERATION. vil 

or alliance whatever, between them, without the consent of the United 
States, in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No State shall lay any imposts or duties which may interfere with 
any stipulations in treaties, entered into by the United States, in Con- 
gress assembled, with any king, prince, or state, in pursuance of anv 
treaties already proposed by Congress to the courts of France and 
Spain. 

No vessels of war shall be kept up in time of peace, by any State, 
except such number only as shall be deemed necessary, by the United 
States, in Congress assembled, for the defense of such State or its 
trade; nor shall any body of forces be kept up, by any State, in time of 
peace, except such number only as, in the judgment of the United 
States, in Congress assembled, shall be deemed requisite to garrison 
the forts necessary for the defense of such State ; but every State shall 
always keep up a well-regulated and disciplined militia, sufficiently 
armed and accoutered, and shall provide and constantly have ready 
for use, in public stores, a due number of field-pieces and tents, and a 
proper quantity of arms, ammunition, and camp equipage. 

No State shall engage in any war without the consent of the United 
States, in Congress assembled, unless such State be actually invaded 
by enemies, or shall have received certain advice of a resolution 
being formed by some nation of Indians to invade such State, and 
the danger is so imminent as not to admit of a delay till the United 
States, in Congress assembled can be consulted ; nor shall any State 
grant commissions to any ships or vessels of war, nor letters of 
marque or reprisal, except it be after a declaration of war by the 
United States, in Congress assembled, and then only against the 
kingdom or state, and the subjects thereof, against which war has 
been so declared, and under such regulations as shall be established 
by the United States, in Congress assembled, unless such State be 
infested by pirates, in which case vessels of war may be fitted out 
for that occasion, and kept so long as the danger shall continue, 
or until the United States, in Congress assembled, shall determine 
otherwise. 

Art. VII. — When land forces are raised by any State, for the 
common defense, all officers of, or under the rank of colonel, shall 
be appointed by the legislature of each State respectively by whom 
such forces shall be raised, or in such manner as such State shall 
direct, and all vacancies shall be filled up by the State which first 
made the appointment. 

Art. VIII. — All charges of war, and all other expenses that shall 
be incurred for the common defense or sjeneral welfare, and allowed 
C. G. 32. 



Vlll APPENDIX. 

by the United States, in Congress assembled, shall be defrayed out 
of a common treasury, which. shall be supplied by the several States, 
in proportion to the value of all land within each State, granted 
to, or surveyed for, any person, as such land and the buildings and 
improvements thereon shall be estimated, according to such mode 
as the United States, in Congress assembled, shall, from time to time, 
direct and appoint. The taxes for paying that proportion shall be 
laid and levied by the authority and direction of the legislatures 
of the several States, within the time agreed upon by the United 
States, in Congress assembled. 

Art. IX. — The United States, in Congress assembled, shall have 
the sole and exclusive right and power of determining on peace 
and war, except in the cases mentioned in the sixth Article ; of send- 
ing and receiving ambassadors; entering into treaties and alliances, 
provided that no treaty of commerce shall be made, whereby the 
legislative power of the respective States shall be restrained from 
imposing such imposts and duties on foreigners, as their own people 
are subjected to, or from prohibiting the exportation or importation 
of any species of goods or commodities whatsoever; of establishing 
rules for deciding, in all cases, what captures on land or water shall 
be legal, and in what manner prizes taken by land or naval forces 
in the service of the United States, shall be divided or appropriated ; 
of granting letters of marque and reprisal in times of peace; ap- 
pointing courts for the trial of piracies and felonies committed on 
the high seas; and establishing courts for receiving and determining 
finally appeals in all cases of captures; provided that no member of 
Congress shall be appointed a judge of any of the said courts. 

The United States, in Congress assembled, shall also be the last 
resort on appeal, in all disputes and differences now subsisting, or 
that hereafter may arise between two or more States concerning 
boundary, jurisdiction, or any other cause whatever ; which authority 
shall always be exercised in the manner following: "Whenever the 
legislative or executive authority, or lawful agent of any State in 
controversy with another, shall present a petition to Congress, stating 
the matter in question, and praying for a hearing, notice thereof shall 
be given by order of Congress, to the legislative or executive au- 
thority of the other State in controversy, and a clay assigned for the 
appearance of the parties by their lawful agents, who shall then be 
directed to appoint, by joint consent, commissioners or judges to con- 
stitute a court for hearing and determining the matter in question ; 
but if they can not agree, Congress shall name three persons out of 
each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until 






ARTICLES OF CONFEDERATION. IX 

the number shall be reduced to thirteen; and from that number not 
less than seven nor more than nine names, as Congress shall direct, 
shall, in the presence of Congress, be drawn out by lot; and the per- 
sons whose names shall be so drawn, or any five of them, shall be 
commissioners or judges, to hear and finally determine the contro- 
versy, so always as a major part of the judges, who shall hear the 
cause, shall agree in the determination ; and if either party shall 
neglect to attend at the day appointed, without showing reasons 
which Congress shall judge sufficient, or being present, shall refuse 
to strike, the Congress shall proceed to nominate three persons out 
of each State, and the secretary of Congress shall strike in behalf 
of such party absent or refusing; and the judgment and sentence 
of the court, to be appointed in the manner before prescribed, shall 
be final and conclusive; and if any of the parties shall refuse to 
submit to the authority of such court, or to appear or defend their 
claim or cause, the court shall nevertheless proceed to pronounce 
sentence or judgment, which shall in like manner be final and de- 
cisive; the judgment or sentence and other proceedings being in 
either case transmitted to Congress, and lodged among the acts of 
Congress for the security of the parties concerned ; provided, that 
every commissioner, before he sits in judgment, shall take an oath, 
to be administered by one of the judges of the supreme or superior 
court of the State where the cause shall be tried, "well and truly 
to hear and determine the matter in question, according to the best 
of his judgment, without favor, affection, or hope of reward." Pro- 
vided, also, that no State shall be deprived of territory for the benefit 
of the United States. 

All controversies concerning the private right of soil claimed 
under different grants of two or more States, whose jurisdictions, as 
they may respect such lands, and the States which passed such 
grants are adjusted, the said grants or either of them being at the 
same time claimed to have originated antecedent to such settlement 
of jurisdiction, shall, on the petition of either party to the Congress 
of the United States, be finally determined, as near as may be, in the 
same manner as is before prescribed for deciding disputes respecting 
territorial jurisdiction between different States. 

The United States, in Congress assembled, shall also have the 
sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the 
respective States; fixing the standard of weights and measures 
throughout the United States ; regulating the trade and managing 
all affairs with the Indians, not members of any of the States; 
provided that the legislative right of any State, within its own 



X APPENDIX. 

limits, be not infringed or violated ; establishing and regulating 
post-offices from one State to another, throughout all the United 
States, and exacting such postage on the papers passing through 
the same, as may be requisite to defray the expenses of the said 
office ; appointing all officers of the land forces in the service of 
the United States, excepting regimental officers; appointing all 
the officers of the naval forces, and commissioning all officers what- 
ever in the service of the United States; making rules for the 
government and regulation of the said land and naval forces, and 
directing their operations. 

The United States, in Congress assembled, shall have authority to 
appoint a committee, 10 sit in the recess of Congress, to be denom- 
inated, "A Committee of the States," and to consist of one delegate 
from each State ; and to appoint such other committees and civil 
officers as may be necessary for managing the general affairs of the 
United States under their direction; to appoint one of their num- 
ber to preside; provided that no person be allowed to serve in the 
office of president more than one year in any term of three years; 
to ascertain the necessary sums of money to be raised for the service 
of the United States, and to appropriate and apply the same for 
defraying the public expenses; to borrow money or emit bills on 
the credit of the United States, transmitting every half year to the 
respective States an account of the sums of money so borrowed 
or emitted; to build and equip a navy; to agree upon the num- 
ber of land forces, and to make requisitions from each State for 
its quota, in proportion to the number of white inhabitants in such 
State, which requisition shall be binding; and thereupon the 
Legislature of each State shall appoint the regimental officers, raise 
the men, and clothe, arm, and equip them, in a soldier-like manner, 
at the expense of the United States; and the officers and men so 
clothed, armed, and equipped shall march to the place appointed, 
and within the time agreed on by the United States, in Congress 
assembled ; but if the United States, in Congress assembled, shall, on 
consideration of circumstances, judge proper that any State should 
not raise men, or should raise a smaller number than its quota, and 
that any other State should raise a greater number of men than the 
quota thereof, such extra number shall be raised, officered, clothed, 
armed, and equipped in the same manner as the quota of such State, 
unless the Legislature of such State shall judge that such extra 
number can not be safely spared out of the same, in which case they 
shall raise, officer, clothe, arm, and equip, as many of such extra 
number as they judge can be safely spared, and the officers and men 
so clothed, armed, and equipped, shall march to the place appointed, 






ARTICLES OP CONFEDERATION. XI 

and within the time agreed on by the United States, in Congress 
assembled. 

The United States, in Congress assembled, shall never engage in 
a war, nor grant letters of marque and reprisal in time of peace, 
nor enter into any treaties or alliances, nor coin money, nor regulate 
the value thereof, nor ascertain the sums and expenses necessary 
for the defense and welfare of the United States, or any of them, 
nor emit bills, nor borrow money on the credit of the United States, 
nor appropriate money, nor agree upon the number of vessels of war 
to be built or purchased, or the number of land or sea forces to be 
raised, nor appoint a commander-in-chief of the army or navy, un- 
less nine States assent to the same, nor shall a question on any other 
point, except for adjourning from day to day, be determined, unless by 
the votes of a majority of the United States, in Congress assembled. 

The Congress of the United States shall have power to adjourn to 
any time within the year, and to any place within the United States, 
so that no period of adjournment be for a longer duration than the 
space of six months, and shall publish the journal of their proceed- 
ings monthly, except such parts thereof relating to treaties, alliances, 
or military operations, as in their judgment require secrecy; and the 
yeas and nays of the delegates of each State, on any question, shall be 
entered on the journal, when it is desired by any delegate; and the 
delegates of a State, or any of them, at his or their request, shall be 
furnished with a transcript of the said journal, except such parts 
as are above excepted, to lay before the legislatures of the several 
States. 

Art. X. — The committee of the States, or any nine of them, shall 
be authorized to execute, in the recess of Congress, such of the 
powers of Congress as the United States, in Congress assembled, by 
the consent of nine States, shall, from time to time, think expedient 
to vest them with ; provided that no power be delegated to the said 
committee, for the exercise of which, by the articles of confedera- 
tion, the voice of nine States, in the Congress of the United States 
assembled is requisite. 

Art. XL— Canada acceding to this confederation, and joining 
in the measures of the United States, shall be admitted into, and 
entitled to all the advantages of this Union : but no other colony 
shall be admitted into the same, unless such admission be agreed to 
by nine States. 

Art. XII.— All bills of credit emitted, moneys borrowed, and 
debts contracted by or under the authority of Congress, before the 
assembling of the United States, in pursuance of the present con- 
federation, shall be deemed and considered as a charge against the 



Xll APPENDIX. 

:es, Air payment and satisfaction whereof the said United 
States and the public faith are hereby solemnly pledged. 

A*t. XITL — Every State shall abide by the determinations of the 
■ Congress assembled, on all questions which by this 
Confederation are submitted to them. And the Articles of this Con- 
shall be inviolably observed by ever ■ i the Union 
be perpetual ; nor snail any alteration at any time hereafter 
be made in any of then, unless such alteration be agreed to in a 
Congress of the United and be afterwards c onfirm ed by the 
-rc:-!:":r-r- :: e"ery Scare. 

Ami w&ereas it hath pleased the gres Timinin of the world to 
incline the hearts of the legislatures we respectively represent 
in Congress, to approve of, and to authorize us to rat:: 
Articles of Confederation and perpetual Union, Know ye. that we. 
the undersigned delegates, by virtue of the power and auth:; 

n for that purpose, do. by these presents, in the name and in 
behalf of oar respective constituents, fully and entirely ratify and 
:: i.:. i\:\. in i t^:- :' :/_e =.i:i Ar:::.es : L ■: r :V: e ri :: : r. md 
perpetual Union, and all and singular the matters and things therein 
contained. And we do further solemnly plight and engage the 
faith of our respective constituents, that they shall abide 1 

of the United States, in Congress assembled, on all 
rhich by the said Confederation are submitted to them; 
and that the Articles thereof shall be inviolably observed by the 
States we respectively represent, and that the Union shall be per- 
petual. In witness whereof, we have hereunto set our hands in 
Congress. Bone at Philadelphia, in 1 9nri Pennsylvania, the 

ninth day of July, in the year of our Lord 1778. and in the third 
year of the Independence of 



ORDINANCE OF 1787. 

July 13, 1787. 



An ordinance for the government of the Territory of the 
United States, north-west of the river Ohio. 



Be it ordained, by the United States, in Congress assembled, that the 
said Territory, for the purposes of temporary government, be one 
district ; subject, however, to be divided into two districts, as future 
circumstances may, in the opinion of Congress, make it expedient. 

Be it ordained, by the authority aforesaid, that the estates, both of 
resident and non-resident proprietors in the said Territory, dying 
intestate, shall descend to, and be distributed among, their children, 
and the descendants of a deceased child, in equal parts ; the descend- 
ants of a deceased child or grandchild, to take the share of their 
deceased parent, in equal parts, among them; and where there shall 
be no -children or descendants, then in equal parts to the next of kin, in 
equal degree; and among collaterals, the children of a deceased brother 
or sister of the intestate, shall have, in equal parts, among them, their 
deceased parent's share; and there shall in no case be a distinction 
between kindred of the whole and half blood ; saving in all cases to 
the widow of the intestate, her third part of the real estate for life, 
and one-third part of the personal estate; and this law relative to 
descents and dower, shall remain in full force until altered by the 
legislature of the district. And until the governor and judges shall 
adopt laws as hereinafter mentioned, estates in the said Territory may 
be devised or bequeathed by wills in writing, signed and sealed by 
him or her, in whom the estate may be (being of full age), and attested 
by three witnesses, and real estates may be conveyed by lease and 
release, or bargain and sale, signed, sealed, and delivered by the per- 
son, being of full age, in whom the estate may be, and attested by two 
witnesses, provided such wills be duly proved, and such conveyances 
be acknowledged, or the execution thereof duly proved, and be re- 
corded within one year after proper magistrates, courts, and registers 

(xiii) 



XIV APPENDIX. 

shall be appointed for that purpose; and personal property may be 
transferred by delivery, saving, however, to the French and Canadian 
inhabitants, and other settlers of the Kaskaskias, Saint Vincents, and 
the neighboring villages, who have heretofore professed themselves 
citizens of Virginia, their laws and customs now in force among them, 
relative to descent and conveyance of property. 

Be it ordained, by the authority aforesaid, that there shall be ap- 
pointed from time to time, by Congress, a governor, whose commis- 
sion shall continue in force for the term of three years, unless sooner 
revoked by Congress; he shall reside in the district, and have a free- 
hold estate therein, in one thousand acres of land, while in the exercise 
of his office. There shall be appointed from time to time, by Congress, 
a secretary, whose commission shall continue in force for four years, 
unless sooner revoked; he shall reside in the district, and have a free- 
hold estate therein, in five hundred acres of land, while in the exercise 
of his office; it shall be his duty to keep and preserve the acts and 
laws pissed by the legislature, and the public records of the district, 
and the proceedings of the governor in his executive department; and 
transmit authentic copies of such acts and proceedings, every six 
months, to the secretary of Congress. There shall also be appointed 
a court to consist of three judges, any two of whom to form a court, 
who shall have a common law jurisdiction, and reside in the district, 
and have each therein a freehold estate, in five hundred acres of land, 
while in the exercise of their offices; and their commissions shall con- 
tinue in force during good behavior. 

The governor and judges, or a majority of them, shall adopt and 
publish in the district, such laws of the original States, criminal 
and civil, as may be necepsnry, and best suited to the circumstances 
of the district, and report them to Congress, from lime to time, which 
laws shall be in force in the district until the organization of the 
general assembly therein, unless disapproved of by Congress; but 
afterwards, the legislature shall have authority' to alter them as 
they shall think fit. 

The governor for the time being, shall be commander-in-chief 
of the militia, appoint and commission all officers in the same, 
below the rank of general officers. All general officers shall be 
appointed and commissioned by Congress. 

Previous to the organization of the general assembly, the governor 
shall appoint such magistrates and other civil officers, in each county 
or township, as he shall find necessary for the preservation of the 
peace and good order in the same. After the general assembly shall 
be organized, the powers and duties of magistrates and other civil 
officers shall be regulated and defined by the said assembly; but 



ORDINANCE OF 1787. XV 

ail magistrates and other civil officers, not herein otherwise directed, 
shall, during the continuance of this temporary government, be ap- 
pointed by the governor. 

For the prevention of crimes and injuries, the laws to be adopted 
or made, shall have force in all parts of the district, and for the 
execution of process, criminal and civil, the governor shall make 
proper divisions thereof; and he shall proceed from time to time, 
as circumstances may require, to lay out the parts of the district in 
which the Indian titles shall have been extinguished, into counties 
and townships, subject, however, to such alterations as may thereafter 
be made by the legislature. 

So soon as there shall be five thousand free male inhabitants, of 
full age, in the district, upon giving proof thereof to the governor, 
they shall receive authority, with time and place, to elect repre- 
sentatives from their counties or townships, to represent them in 
the general assembly ; provided, that for every five hundred free 
male inhabitants there shall be one representative, and so on pro- 
gressively with the number of free male inhabitants, shall the right 
of representation increase, until the number of representatives shall 
amount to twenty-five, after which the number and proportion of 
representatives shall be regulated by the legislature; provided, that 
no person be eligible or qualified to act as a representative, unless 
he shall have been a citizen of one of the United States three years, 
and be a resident in the district, or unless he shall have resided in the 
district three years, and in either case shall likewise hold in his own 
right, in fee simple, two hundred acres of land within the same; 
provided, also, that a freehold in fifty acres of land in the district, 
having been a citizen of one of the States, and being resident in the 
district, or the like freehold and two years residence in the district, 
shall be necessary to qualify a man as an elector of a representative. 

The representatives thus elected, shall serve for the term of two 
years, and in case of the death of a representative, or removal from 
office, the governor shall issue a writ to the county or township for 
which he was a member, to elect another in his stead, to serve for the 
residue of the term. 

The general assembly, or legislature, shall consist of the governor, 
legislative council, and a house of representatives. The legislative 
council shall consist of five members, to continue in office for five years, 
unless sooner removed by Congress, any three of whom to be a quo- 
rum, and the members of the council shall be nominated and ap- 
pointed in the following manner, to-wit: as soon as representatives 
shall be elected, the governor shall appoint a time and place for them 
to meet together, and when met, they shall nominate ten persons, 
C. G. 33. 



XVI • APPENDIX. 

residents in Che district, and each possessed of a freehold in five hun- 
dred acres of land, and return their.names to Congress; five of whom 
Congress shall appoint and commission to serve as aforesaid ; and when- 
ever a vacancy shall happen in the council, by death or removal from 
office, the house of representatives shall nominate two persons, quali- 
fied as aforesaid, for each vacancy, and return their .names to Con- 
gress, one of whom Congress shall appoint and commission for the 
residue of the term; and every five years, four months at least 
before the expiration of the time of service of the members of 
council, the said house shall nominate ten persons, qualified as 
aforesaid, and return their names to Congress, five of whom Con- 
gress shall appoint and commission to serve as members of the 
council five years, unless sooner removed. 

And the governor, legislative council, and house of representa- 
tives, shall have authority to make laws in all cases for the good 
government of the district, not repugnant to the principles and 
articles in this ordinance established and declared. And all bills 
having passed by a majority in the house, and by a majority in 
the council, shall be referred to the governor for his assent; but 
no bill or legislative act whatever shall be of any force without 
his assent. The governor shall have power to convene, prorogue, 
and dissolve the general assembly, when in his opinion, it shall be 
expedient. 

The governor, judges, legislative council, secretary, and such other 
officers as Congress shall appoint in the district, shall take an, oath or 
affirmation of fidelity, and of office — the governor before the presi- 
dent of Congress, and all other officers before the governor. As soon 
as a legislature shall be formed in the district, the council and house, 
assembled in one room, shall have authority, by joint ballot to elect 
a delegate to Congress, who shall have a seat in Congress, with a right 
of debating, but not of voting, during this temporary government. 

And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and 
constitutions, are erected ; to fix and establish those principles as the 
basis of all laws, constitutions, and governments, which forever here- 
after shall be formed in the said Territory ; to provide also for the 
establishment of States, and permanent government therein, and for 
their admission to a share in the federal councils on an equal footing 
with the original States, at as early periods as may be consistent with 
the general interest. 

It is hereby ordained and declared, by the authority aforesaid, that 
the following articles shall be considered as articles of compact 
between the original States and the people and States in the said 



ORDINANCE OF 1787. XV11 

Territory, and forever remain unalterable, unless by common con- 
sent, to-wit: 

Article I. — No person demeaning himself in a peaceable and 
orderly manner, shall ever be molested on account of his mode of 
worship or religious sentiments in the said Territory. 

Art. II. — The inhabitants of the said Territory shall always be en- 
titled to the benefit of the writ of habeas corpus, and of trial by jury; of 
a proportionate representation of the people in the legislature, and of 
judicial proceedings according to the course of the common law; all 
persons shall be bailable unless for capital offenses, where the proof 
shall be evident or the presumption great; all fines shall be moderate, 
and no cruel or unusual punishments shall be inflicted; no man shall 
be deprived of his liberty or property but by the judgment of his peers, 
or the law of the land ; and should the public exigencies make it neces- 
sary for the common preservation to take any person's property, or 
to demand his particular services, full compensation shall be made 
for the same; and in the just preservation of rights and property, it is 
understood and declared, that no law ought ever to be made, or have 
force in the said Territory, that shall in any manner whatever, inter- 
fere with, or affect private contracts or engagements, bona fide and with- 
out fraud previously formed. 

Art. III. — Religion, morality, and knowledge, being necessary to 
good government and the happiness of mankind, schools, and the 
means of education shall forever be encouraged. The utmost good 
faith shall always be observed towards the Indians; their lands and 
property shall never be taken from them without their consent ; and 
in their property, rights, and liberty, they shall never be invaded or 
disturbed, unless in just and lawful wars authorized by Congress; but 
laws founded in justice and humanity, shall, from time to time, be 
made, for preventing wrongs being done to them, and for preserving 
peace and friendship with them. 

Art. IV. — The said Territory, and the States which may be formed 
therein, shall forever remain a part of this confederacy of the United 
States of America, subject to the Articles of Confederation, and to 
such alteration therein, as shall be constitutionally made; and to all 
the acts and ordinances of the United States, in Congress assembled, 
conformable thereto. The inhabitants and settlers in the said Territory 
shall be subject to pay a part of the federal debts contracted or to be 
contracted, and a proportional part of the expenses of government, to 
be apportioned on them, by Congress, according to the same common 
rule and measure by which apportionments thereof shall be made on 
the other States; and the taxes for paying their proportion, shall be 
laid and levied by the authority and direction of the legislatures of 



XYlil APPENDIX. 

the district, or districts, or new State?, as in the original State?, within 
the time agreed upon by the United States, in Congress assembled. 
The legislatures of those districts, or new States, shall never interfere 
with the primary disposal of the soil by the United States, in Congress 
assembled, nor with any regulations Congress may find necessary for 
securing the title in such soil to the bona fide purchasers. No tax shall 
be imposed on lands the property of the United Slates; and in no case 
shall non-resident proprietors be taxed higher than residents. The 
navigable waters leading into the Mississippi and St. Lawrence, and 
the carrying places between the same, shall be common highwa; 
forever free, as well to the inhabitants of the said Territory, as to the 
citizens of the United States, and those of any other States that may be 
admitted into the confederacy, without any tax. impost, or duty therefor. 
Art. V. — There shall be formed in the said Territory not less than 
three, nor more than five States ; and the boundaries of the States, as 
soon as Virginia shall alter her act of cession and consent to the 
same, shall become fixed and established as follows, to-wit: The 
western State in the said Territory, shall be bounded by the Mississippi, 
the Ohio, and the Wabash rivers: a direct line drawn, from the Wabash 
and Post Vincents due north to the territorial line between the United 
States and Canada, and by the said territorial line to the Lake of the 
Woods and Mississippi. The middle State shall be bounded by the 
said direct line, the Wabash from Post Vincents to the Ohio, by the 
Ohio, by a direct line drawn due north from the mouth of the Great 
Miami to the said territorial line, and by said territorial line. The 
eastern State shall be bounded by the last mentioned direct line, the 
Ohio, Pennsylvania, and the said territorial line; provided, however, 
and it is further understood and declared, that the boundaries of these 
tliree States shall be subject so far to be altered, that if Congress shall 
hereafter find it expedient, they shall have authority to form one or 
two States in that part of the said Territory which lies north of an 
east and west line drawn through the southerly bend or extreme of 
lake Michigan : and whenever any of the said States shall have sixty 
thousand free inhabitants therein, such State shall be-admitted by its 
delegates, into the Congress of the Lfnited States, on an equal footing 
with the original States, in all respects whatsoever; and shall be at 
liberty to form a permanent constitution and State government : 
Provided, the constitution and government so to be formed shall be 
republican, and in conformity to the principles contained in these 
articles; and, so far as it can be consistent with the general interest of 
the confederacy, such admission shall be allowed at an earlier period, 
and when there may be a less number of free inhabitants in the E 
than sixtv thousand. 



CONSTITUTION OF THE UNITED STATES. XI X 

Art. VI. — There shall be neither slavery nor involuntary servitude 
in the said Territory, otherwise than in the punishment of crimes 
whereof the party shall have been duly convicted : Provided, always, 
that any person escaping into the same, from whom labor or service 
is lawfully claimed in any one of the original States, such fugitive 
may be lawfully reclaimed and conveyed to the person claiming his 
or her labor or service as aforesaid. 

Be it ordained, by the authority aforesaid, that the resolutions of 
the 23d of April, 1784, relative to the subject of this ordinance, be, 
and the same are hereby repealed and declared null and void. 



CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA. 



We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, provide 
for the common defense, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain and 
establish this Constitution for the United States of America. 

AKTICLE I.— Section 1. 
1. All legislative powers herein granted shall be vested in a Con- 
gress of the United States, w r hich shall consist of a Senate and House 
of Eepresentatives. 

Section 2. 

1. The House of Eepresentatives shall be composed of members 
chosen every second year by the people of the several States ; and the 
electors in each State shall have the qualifications requisite for elec- 
tors of the most numerous branch of the State legislature. 

2. No person shall be a Representative who shall not have attained 
to the age of twenty-five years, and been seven years a citizen of the 
United States, and w T ho shall not, when elected, be an inhabitant of 
that State in which he shall be chosen. 



XX APPENDIX. 

3. Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, accord- 
ing to their respective numbers, which shall be determined by adding 
to the whole number of free persons, including those bound to service 
for a term of years, and excluding Indians not taxed, three-fifths of 
all other persons. The actual enumeration shall be made within 
three years after the first meeting of the Congress of the United 
States, and within every subsequent term of ten years, in such manner 
as they shall by law direct. The number of Representatives shall not 
exceed one for every thirty thousand, but each State shall have at 
least one Representative; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to choose three; Massa- 
chusetts, eight ; Rhode Island and Providence Plantations, one ; Con- 
necticut, five; New York, six; New Jersey, four; Pennsylvania, 
eight ; Delaware, one ; Maryland, six ; Virginia, ten ; North Carolina, 
five ; South Carolina, five ; and Georgia, three. 

4. When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill 
such vacancies. 

5. The House of Representatives shall choose their Speaker and 
other officers, and shall have the sole power of impeachment. 

Section 3. 

1. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the legislature thereof, for six 
years; and each Senator shall have one vote. 

2. Immediately after they shall be assembled in consequence of 
the first election, they shall be divided, as equally as may be into 
three classes. The seats of the Senators of the first class shall be 
vacated at the expiration of the second year, of the second class 
at the expiration of the fourth year, and of the third class at the 
expiration of the sixth year, so that one-third may be chosen every 
second year; and if vacancies happen, by resignation, or otherwise, 
during the recess of the legislature of any State, the executive 
thereof may make temporary appointments until the next meeting 
of the legislature, which shall then fill such vacancies. 

3. No person shall be a Senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that 
State for which he shall be chosen. 

4. The Vice-President of the United States shall be President of 
the Senate, but shall have no vote, unless they be equally divided. 



CONSTITUTION OF THE UNITED STATES. XXI 

5. The Senate shall choose their other officers, and also a Presi- 
dent pro-tempore, in the absence of the Vice-President, or when he 
shall exercise the office of President of the United States. 

6. The Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside; and no person shall be convicted without the con- 
currence of two-thirds of the members present. 

7. Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and enjoy 
any office of honor, trust, or profit, under the United States; but 
the party convicted shall nevertheless be liable and subject to in- 
dictment, trial, judgment, and punishment, according to law. 

Section 4. 

1. The times, places, and manner of holding elections for Sen- 
ators and Representatives shall be prescribed in each State by the 
legislature thereof; but the Congress may, at any time, by law, 
make or alter such regulations, except as to the places of choos- 
ing Senators. 

2. The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall by law appoint a different day. 

Section 5. 

1. Each House shall be the judge of the elections, returns, and 
qualifications of its own members, and a majority of each shall 
constitute a quorum to do business; but a smaller number may 
adjourn from day to day, and may be authorized to compel the 
attendance of absen^ members, in such manner and under such 
penalties as each House may provide. 

2. Each House may determine the rules of its proceedings, pun- 
ish its members for disorderly behavior, and, with the concurrence 
of two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, and from 
time to time, publish the same, excepting such parts as may in 
their judgment require secrecy; and the yeas and nays of the 
members of either House, on any question, shall, at the desire of- 
one-fifth of those present, be entered on the journal. 

4. Neither House, during the session of Congress, shall, without 
the consent of the other, adjourn for more than three days, nor to 
any other place than that in which the two Houses shall be sitting. 



xxii APPENDIX. 



Section 



1. The Senators and Representatives shall receive a compensa- 
tion for their services, to be ascertained by law. and paid out of 
the Treasury of the United States. They shall in all cases, except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective Houses, 
and in going to and returning from the same ; and for any speech 
or debate in either House, they shall not be questioned in any 
other place. 

2. No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 
of the United States which shall have been created, or the emolu- 
ments whereof shall have been increased, during such time ; and 
no person holding any office under the United States shall be a 
member of either House during his continuance in office. 

Section 7. 

1. All bills for raising revenue shall originate in the House of 
Representatives; but the Senate may propose or concur with amend- 
ments, as on other bills. 

2. Every bill which shall have passed the House of Representa- 
tives and the Senate, shall, before it become a law, be presented 
to the President of the United States: if he approve he shall sign 
it, but if not he shall return it with his objections to that House 
in which it shall have originated, Avho shall enter the objections at 
large in their journal, and proceed to reconsider it. If, after such 
reconsideration, two-thirds of that House shall agree to pass the 
bill, it shall be sent, together with the objections, to the other 
House, by which it shall likewise be reconsidered, and if ap- 
proved by two-thirds of that House, it shall become a law. But 
in all such cases the votes of both Houses shall be determined 
by yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each House re- 
spectively. If any bill shall not be returned by the President 
within ten days (Sundays excepted) after it shall have been pre- 
sented to him, the same shall be a law, in like manner as if he 
had signed it, unless the Congress, by their adjournment, prevent 
its return, in which case it shall not be a law. 

3. Every order, resolution, or vote, to which the concurrence of 
the Senate and House of Representatives may be necessary i except 
on a question of adjournment) shall be presented to the President 
of the United States, and before the same shall take effect shall be 



CONSTITUTION OF THE UNITED STATES. JCXlii 

approved by him, or, being disapproved by him, shall be re-passed 
by two-thirds of the Senate and House of Representatives, accord- 
ing to the rules and limitations prescribed in the case of a bill. 

Section 8. 

The Congress shall have power — 

1. To lay and collect taxes, duties, imposts, and excises, to pay 
the debts and provide for the common defense and general welfare 
of the United States; but all duties, imposts, and excises shall be 
uniform throughout the United States; 

2. To borrow money on the credit of the United States ; 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes; 

4. To establish a uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States ; 

5. To coin money, regulate the value thereof and of foreign coin, 
and fix the standard of weights and measures; 

6. To provide for the punishment of counterfeiting the securities 
and current coin of the United States ; 

7. To establish post-offices and post-roads ; 

8. To promote the progress of science and useful arts, by securing 
for limited times, to authors and inventors the exclusive right to their 
respective writings and discoveries ; 

9. To constitute tribunals inferior to the Supreme Court ; 

10. To define and punish piracies and felonies committed on the 
high seas, and offenses against the law of nations ; 

11. To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water ; 

12. To raise and support armies, but no appropriation of money to 
that use shall be for a longer term than two years ; 

13. To provide and maintain a navy ; 

14. To make rules for the government and regulation of the land 
and naval forces ; 

15. To provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions ; 

16. To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the service 
of the United States, reserving to the States respectively the appoint- 
ment of the officers, and the authority of training the militia accord- 
ing to the discipline prescribed by Congress ; 

17. To exercise exclusive legislation in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by cession of 
particular Siates and the acceptance of Congress, become the seat of 



XXIV APPENDIX. 

the Government of the United States, and to exercise like authority 
over all places purchased by the consent of the legislature of the 
State in which the same shall be, for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings; and, 

18. To make all laws which shall be necessary and proper for car- 
rying into execution the foregoing powers, and all other powers vested 
by this Constitution in the Government of the United States, or in 
any department or officer thereof. 

Section 9. 

1. The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the year one thousand eight hundred 
and eight, but a tax or duty may be imposed on such importation, 
not exceeding ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may 
require it. 

3. Xo bill of attainder or ex pod facto law shall be passed. 

4. No capitation or other direct tax shall be laid, unless in propor- 
tion to the census or enumeration hereinbefore directed to be taken. 

5. Xo tax or duty shall be laid on articles exported from any State. 
Xo preference shall be given by any regulation of commerce or rev- 
enue to the ports of one State over those of another; nor shall vessels 
bound to or from one State be obliged to enter, clear, or pay duties 
in another. 

6. Xo money shall be drawn from the treasury but in consequence 
of appropriations made by law; and a regular statement and account 
of the receipts and expenditures of all public money shall be pub- 
lished from time to time. 

7. Xo title of nobility shall be granted by the United States; and 
no person holding any office of profit or trust under them, shall, with- 
out the consent of the Congress, accept of any present, emolument, 
office, or title, of any kind whatever, from any king, prince, or foreign 
state. 

Section 10. 

1. No State shall enter into any treaty, alliance, or confederation ; 
grant letters of marque and reprisal ; coin money ; emit bills of credit ; 
make any thing but gold and silver coin a tender in payment of debts; 
pass any bill of attainder, ex post facto law, or law impairing the obli- 
gation of contracts, or grant any title of nobility. 

2. Xo State shall, without the consent of the Congress, lay any im- 



CONSTITUTION OF THE UNITED STATES. XXV 

posts or duties on imports or exports except what may be absolutely 
necessary for executing its inspection laws: and the net produce of 
all duties and imposts, laid by any State on imports or exports, shall be 
for the use of the treasury of the United States; and all such laws shall 
be subject to the revision and control of the Congress. No State shall, 
without the consent of Congress, lay any duty of tonnage, keep troops or 
ships of war in time of peace, enter into any agreement or compact with 
another State or with a foreign power, or engage in war, unless actu- 
ally invaded, or in such imminent danger as will not admit of delay. 

AETICLE II.— Section 1. 

1. The Executive power shall be vested in a President of the United 
States of America. He shall hold his office during the term of four 
years, and, together with the Vice-President, chosen for the same term, 
be elected as follows : 

2. Each State shall appoint in such manner as the legislature 
thereof may direct, a number of Electors equal to the whole number 
of Senators and Eepresentatives to which the State may be entitled in 
the Congress ; but no Senator or Eepresentative, or person holding an 
office of trust or profit under the United States, shall be appointed an 
Elector. 

Clause 3 has been superseded by the 12th Article of Amendments; for text 
see page 1 66. 

4. The Congress may determine the time of choosing the Electors, 
and the day on which they shall give their votes ; which day shall 
be the same throughout the United States. 

5. No person, except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, shall 
be eligible to the office of President ; neither shall any person be 
eligible to that office who shall not have attained to the age of thirty- 
five years, and been fourteen years a resident within the United 
States. 

6. In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties of 
said office, the same shall devolve on the Vice-President; and the 
Congress may by law provide for the case of removal, death, resigna- 
tion, or inability, both of the President and Vice-President, declaring 
what officer shall then act as President, and such officer shall act ac- 
cordingly, until the disability be removed, or a President shall be 
elected. 

7. The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished during 
the period for which he shall have been elected, and he shall not 



XXVI APPENDIX. 

receive within that period any other emolument from the United 
States, or any of them. 

8. Before he enter on the execution of his office, he shall take the 
following oath or affirmation : 

'"I do solemnly swear (or affirm) that I will faithfully execute 
the office of President of the United States, and will, to the best of 
my ability, preserve, protect, and defend the Constitution of the 
United States." 

Section 2. 

1. The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several States 
when called into the actual service of the United States; he may re- 
quire the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties of 
their respective offices, and he shall have power to grant reprieves 
and pardons for offenses against the United States, except in ca£ 
impeachment. 

2. He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the Senators present 
concur : and he shall nominate, and by and with the advice and con- 
sent of the Senate, shall appoint Ambassadors, other public Ministers 
and Consuls, Judges of the Supreme Court, and all other officers of 
the United States, whose appointments are not herein otherwise pro- 
vided for, and which shall be established by law ; but the Congress 
may by law vest the appointment of such inferior officers as they 
think proper, in the President alone, in the Courts of law, or in the 
heads of Departments. 

3. The President shall have power to fill up all vacancies that may 
happen during the recess of the Senate, by granting commissions 
which shall expire at the end of their next session. 

Section 3. 

He shall from time to time, give to the Congress information 
of the state of the Union, and recommend to their consideration such 
measures as he shall judge necessary and expedient ; he may. on ex- 
traordinary occasions, convene both Houses, or either of them, and 
in case of disagreement between them with respect to the time of ad- 
journment, he may adjourn them to such time as he shall think 
proper ; he shall receive ambassadors and other public ministers ; he 
shall take care that the laws be faithfully executed, and shall com- 
mission all the officers of the United Sta: 



CONSTITUTION OF THE UNITED STATES. XXV11 

Section 4. 

The President, Vice-President, and all civil officers of the United 
States, shall be removed from office on impeachment for, and convic- 
tion of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III— Section 1. 
The judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior Courts as the Congress may 
from time to time ordain and establish. The Judges, both of the 
Supreme. and inferior Courts, shall hold their offices during good be- 
havior, and shall, at stated times, receive for their services a com- 
pensation which shall not be diminished during their continuance 
in office. 

Section 2. 

1. The judicial power shall extend to all cases in law and equity 
arising under this Constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority ; to all 
cases affecting ambassadors, other public ministers, and consuls ; 
to all cases of admiralty and maritime jurisdiction ; to controversies 
to which the United States shall be a party ; to controversies between 
two or more States; between a State and citizens of another State; 
between citizen;; of different States ; between citizens of the same State 
claiming lands under grants of different States ; and between a State, 
or the citizens thereof, and foreign States, citizens, or subjects. 

2. In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. In all the other cases before 
mentioned, the Supreme Court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions and under such regulations 
as the Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall be 
by jury ; and sucX trial shall be held in the State where the said 
crimes shall have been committed ; but when not committed within 
any State, the trial shall be at such place or places as the Congress 
may by law have directed. 

Section 3. 

1. Treason against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them aid and 
comfort. No person shall be convicted of treason unless on the tes- 
timony of two witnesses to the same overt act, or on confession 
in open Court. 



xxvill APPENDIX. 

2. The Congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attained. 

ARTICLE IV— Section 1. 
Full faith and credit shall be given in each State to the public 
acts, records, and judicial proceedings of every other State. And the 
Congress may, by general laws, prescribe the manner in which 
such acts, records, and proceedings shall be proved, and the effect 
thereof. 

Section 2. 

1. The citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States. 

2. A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another State, shall, 
on demand of the executive authority of the State from which he fled, 
be delivered up, to be removed to the State having jurisdiction of the 
crime. 

3. No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such service or 
labor may be due. 

Section 3. 

1. New States may be admitted by the Congress into this Union ; 
but no new State shall be formed or erected within the jurisdiction 
of any other State; nor any State be formed by the junction of two or 
more States, or parts of States, without the consent of the legislatures 
of the States concerned as well as of the Congress. 

2. The Congress shall have power to dispose of and make all need- 
ful rules and regulations respecting the territory or other property 
belonging to the United States ; and nothing in this Constitution 
shall be so construed as to prejudice any claims of the United States, 
or of any particular State. 

Section 4. 

The United States shall guaranty to every State in this Union 
a republican form of government, and shall protect each of them 
against invasion; and, on application of the legislature, or of the Ex- 
ecutive (when the legislature can not be convened) against domestic 
violence. 

ARTICLE V. 

The Congress, whenever two-thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or. on the 






CONSTITUTION OF THE UNITED STATES. xxix 

application of the legislatures of two-thirds of the several States, shall 
call a convention for proposing Amendments, which, in either case, 
shall be valid to all intents and purposes as part of this Constitution, 
when ratified by the legislatures of three-fourths of the several States, 
or by conventions in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the Congress : provided, 
that no Amendment which may be made prior to the year one thous- 
and eight hundred and eight shall in any manner affect the first and 
fourth clauses in the ninth section of the first article; and that no 
State, without its consent, shall be deprived of its equal suffrage in 
the Senate 

AETICLE VI. 

1. All debts contracted and engagements entered into, before the 
adoption of this Constitution, shall be as valid against the United 
States under this Constitution as under the Confederation. 

2. This Constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or which shall 
be made, under the authority of the United States, shall be the 
supreme law of the land ; and the judges in every State shall be 
bound thereby, any thing in the constitution or laws of any State to 
the contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and the 
members of the several State legislatures, and all executive and judi- 
cial officers, both of the United States and of the several States, shall 
be bound by oath, or affirmation, to support this Constitution ; but no 
religious test shall ever be required as a qualification to any office or 
public trust under the United States. 

AETICLE VII. 

The ratification of the Conventions of nine States shall be suffi- 
cient for the establishment of this Constitution between the States so 
ratifying the same. 



AMENDMENTS TO THE CONSTITUTION. 

AETICLE I. 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof ; or abridging the freedom of 
speech or of the press ; or the right of the people peaceably to assem- 
ble, and to petition the government for a redress of grievances. 



XXX APPENDIX. 



ARTICLE II. 



A well-regulated militia being necessary to the security of a free 
state, the right of the people to keep and bear arms shall not be in- 
fringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house with- 
out the consent of the owner, nor in time of war, but in a manner 
to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches, and seizures, shall not be 
violated, and no warrants shall issue, but upon probable cause, sup- 
ported by oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized. 

ARTICLE V. 

No person shall be held to answer for a capital or otherwise in- 
famous crime, unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval forces, or in the militia 
when in actual service in time of war or public danger ; nor shall any 
person be subject for the same offense to be twice put in jeopardy of 
life or limb ; nor shall be compelled in any criminal case, to be a 
witness against himself; nor be deprived of life, liberty, or property, 
without due process of law ; nor shall private property be taken for 
public use without just compensation. 

ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of the 
nature and cause of the accusation ; to be confronted with the wit- 
nesses against him ; to have compulsory process for obtaining wit- 
nesses in his favor, and to have the assistance of counsel for his de- 
fense. 

ARTICLE VII. 

In suits at common law where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
Court of the Lriited States, than according to the rules of the common 
law. 



CONSTITUTION OF THE UNITED STATES. XXXI 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

AETICLE IX. 

The enumeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respect- 
ively, or to the people. 

ARTICLE XI. 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity commenced or prosecuted against 
one of the United States by citizens of another State, or by citizens or 
subjects of any foreign State. 

ARTICLE XII. 

1. The Electors shall meet in their respective States, and vote by 
ballot for President and Vice-President, one of whom, at least, shall 
not be an inhabitant of the same State with themselves ; they shall 
name in their ballots the person voted for as President, and in dis- 
tinct ballots the person voted for as Vice-President, and they shall 
make distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of votes for 
each, which lists they shall sign and certify, and transmit sealed to 
the seat of the government of the United States, directed to the Pres- 
ident of the Senate. The President of the Senate shall, in the pres- 
ence of the Senate and House of Representatives, open all the certifi- 
cates, and the votes shall then be counted ; the person having the 
greatest number of votes for President shall be the President, if such 
number be a majority of the whole number of Electors appointed ; 
and if no person have such majority, then from the persons having 
the highest numbers, not exceeding three, on the list of those voted 
for as President, the House of Representatives shall choose imme- 
diately, by ballot, the President. But in choosing the President, the 
votes shall be taken by States, the representation from each State 
having one vote ; a quorum for this purpose shall consist of a mem- 
ber or members from two-thirds of the States, and a majority of all 
the States shall be necessary to a choice. And if the House of Rep- 
resentatives shall not choose a President, whenever the right of choice 
C. G. 34. 



XXX11 APPENDIX. 

shall devolve upon them, before the fourth day of March next fol- 
lowing, then the Vice-President shall act as President, as in the case 
of the death or other constitutional disability of the President, 
The person having the greatest number of votes as Vice-President 
shall be the Vice-President, if such number be a majority of the 
whole number of Electors appointed, and if no person have a ma- 
jority, then from the two highest numbers on the list the Senate 
shall choose the Vice-President ; a quorum for the purpose shall 
consist of two-thirds of the whole number of Senators, and a major- 
ity of the whole number shall be necessary to a choice. But no 
person constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President of the United States. 

ARTICLE XIII. 

1. Neither Slavery nor involuntary servitude, except as a punish- 
ment for crime, whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their 
jurisdiction. 

2. Congress shall have power to enforce this article by appropriate 
legislation. 

AETICLE XIV. 

1. All persons born or naturalized in the United States, and sub- 
ject to the jurisdiction thereof, are citizens of the United States and 
of the State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities of citizens 
of the United States ; nor shall any State deprive any person of life, 
liberty, or property, without due process of law, nor deny to any per- 
son within its jurisdiction the equal protection of the laws. 

2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But when 
the right to vote at any election for the choice of electors for Presi- 
dent and Vice-President of the United States, Representatives in 
Congress, the executive and judicial officers of a State, or the mem- 
bers of the legislature thereof, is denied to any of the male inhabi- 
tants of such State, being twenty-one years of age, and citizens of the 
United States, or in any way abridged, except for participation in re- 
bellion or other crime, the basis of representation therein shall be 
reduced in the proportion which the number of such male citizens 
shall bear to the whole number of male citizens twenty-one years of 
age in such State. 

3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-President, or hold any office, civil or 



CONSTITUTION OF THE UNITED STATES. XXX111 

military, under the United States, or under any State, who, having 
previously taken an oath, as a member of Congress, or as an officer 
of the United States, or as a member of any State legislature, or as an 
executive or judicial officer of any State, to support the Constitution 
of the United States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the enemies thereof. 
But Congress may, by a vote of two-thirds of each House, remove 
such disability. 

4. The validity of the public debt of the United States, authorized 
by law, including debts incurred for payment of pensions and bounties 
for services in suppressing insurrection or rebellion, shall not be 
questioned. But neither the United States nor any State shall assume 
or pay any debt or oblip-ttion incurred in aid of insurrection or 
rebellion against the United States, or any claim for the loss or 
emancipation of any slave; but all such debts, obligations, and claims 
shall be held illegal and void. 

5. The Congress shall have power to enforce, by appropriate legis- 
lation, the provisions of this article. 

AETICLE XV. 

1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States, or by any State, on account 
of race, color, or previous condition of servitude. 

2. The Congress shall have power to enforce this article by appro- 
priate legislation. 



INDEX. 



Academy, military, 338; naval, 341. 

Adams, John, Vice-President, 314; Presi- 
dent, 319. 

Adams, John Quincy, President, 320. 

Agriculture, department of, 348. 

Alabama, secession of, 242 ; reconstruction 
of, 245 ; admission of, 299. 

Alaska, 313. 

Alloy of gold and silver coins, 102. 

Ambassadors, etc., 324. 

Amendments to the Constitution, clause 
regarding, 247; nineteen proposed, 
fifteen ratified, 248,263 ; three limita- 
tions, 249; difficulties in the way of, 
250 ; approval of President not nec- 
essary, 250; publication of, 252 ; can 
a State withdraw her ratification of, 
252; dates of, 254 ; first, 264 ; second, 
third, 265; fourth, fifth, sixth, 266; 
seventh, eighth, 267; eleventh, 
twelfth, thirteenth, 271 ; fourteenth, 
273 ; fifteenth, 280. 

Amnesty, action of Congress as to, 178; 
proclamations of, 278. 

Annapolis, Convention of 1786, 40; recom- 
mended a convention to revise Arti- 
cles of Confederation, 41. 

Appellate jurisdiction of U. S. Courts, 206, 
207 ; two views of, 208. 

Appointments, by the President, 179,187; 
power of Congress over, 179 ; by 
heads of departments, 179. 

Apportionment of Representatives, 50-55. 

Appropriations, 152. 

Area of the United States, 313. 

Arizona Territory, 306, 313. 

Arkansas, secession of, 212; action of, 244 ; 
reconstruction of, 245 ; admission 
of, 301. 

Armies, power of Congress as to, 128. 

Army regular, 129 ; list of officers in, 131 ; 
rules for the government of, 131, 132 ; 



pay of officers, 338. 
tide: 



Articles of Confederation, adopted by Con- 
gress 1777, ratified by the States 
March 1, 1781, 36; failure of, 36-39 ; 
provisions as to States, 154-159; 
amendment of, 248, 259; Appendix, v. 

Assessor of Internal Revenue, 334. 

Attorney-General, duties of, 199 ; office of 
established. 352; salary of, 353; list 
of, 353; assistants, 353, 355. 

Auditors of the treasury, 330, 331. 

B 

Bank currency, 108-110. 

Bankrupt, allowance to, 98 ; discharge of, 
98; influence of creditors, 98; moral 
obligations of, 99. 

Bankruptcies, 91 ; limited to traders orig- 
inally, 96 ; power formerly in the 
States, 97; three acts passed, 97; 
voluntary and involuntary, 97. 

Bill of attainder, 149; case ex parte Gar- 
land, 150 ; forbidden to States, 154. 

Bill of rights, not in original constitution, 
264; in first eight amendments, 264 ; 
the constitution a, 26^. 

Bills, how passed in Congress, 77. 

Bills of credit, treasury notes, 106; States 
can not emit. 154 ; defined, 156; emit- 
ted by Congress, 157. 

Blount, Wm., expelled, 70; impeached, 192. 

Bonds of U. S., 86 ; not taxable, 87. 



Breckenridge, J. C, Vice-President, 315. 

Bright, Jesse D., expelled from Senate, 70. 

British Parliament, cabinet officers mem- 
bers of, 76 ; power of, 210 ; may 
amend constitution, 2-19. 

Buchanan, James, President, 321. 

Bureaus, in the departments, 322 ; names 
of in Treasury Department, 329. 

Burr, Aaron, tried for treason, 222; Vice- 
President, 315. 

C 

Cabinet Officers, 321 ; salaries of, 322, &59. 

Cadet-midshipmen and engineers, 342. 

Calhoun, John C, Vice-President, 315. 

California, admission of, 3t)6. 

Capitation tax, clause as to, 150. 

Carriers, for free delivery of letters, 117. 

Census, 50; Superintendent of, 348. 

Cession of territory by various States, 233. 

Charge d'Affaires, 326. 

Charter governments (colonial), 25-27. 

Chase, Samuel, impeached, 193, 194. 

Circuit Courts established, 196. 

Citizens, defined, 91, 226, 227, 273; Judge 
Taney in Died Scott case, 228; not 
necessarily voters, 276 ; right to vote, 
280 ; free negroes citizens, in 1781, 228. 

Citizenship, privileges of, 226, 227. 

Civil Rights Bill, 227, 274. 

Civil Service Reform. 1S7. 

Clerk of House of Representatives, 55, 56. 

Clerks, in departments, 355. 

Clinton, George, Vice-President, 315. 

Coast survey, 334 ; superintendents, 335. 

Coinage, 100; an attribute of sovereignty, 
100; international.llO. 

Coining of money forbidden to States, 154. 

Coins, 101; of 1873. 103; foreign, 105. 

Colfax, Schuyler, Vice-President, 315. 

Collector, of Internal Revenue, 334; of 
Customs, 335. 

Colonies, the thirteen, 24 ; three forms of 
government of, 25; colonial Union 
of 1643, 27; meeting at Albany, 27; 
at New York, 1765, 28. 

Colorado Territory, 306 ; bill to admit as a 
State, vetoed, 312. 

Commerce, power of Congress to regulate, 
SS; formerly in the Stares, 88. 

Commissioner, term not now applied to 
diplomatic representatives, 326; of 
Customs, 332; of Internal Revenue, 
333, 334; of Patents. 121,345; of Pen- 
sions, 345; of Land Office, 346; of In- 
dian Affairs, 34S. 

Committees of Congress, 317. 

Committee of the Whole, 318. 

Compensation of Congressmen. 72; none 
in British Parliament, 72 ; various 
rates in Congress, 73, 359. 

Comptroller of the Currency. 333. 

Comptroller of the Treasury. 330. 

Confederation, see Articles of. 

Congress, of two Houses, 48 ; new one ev- 
ery two years, 61 : annual sessions, 
67; instances of three sessions. 68, 
189; each House the judge as to its 
own members, 69; a majority a quo- 
rum, 69; members privileged from 
arrest, 72; members can hold no 
other office, 75; powers of, 80; or- 
ganization of the first, 292. 

Connecticut, no constitution but its colo- 
nial charter till 1818,26; ratification 









INDEX. 



XXXV 



of the Constitution by, 28S ; first 
constitution, 362. 

Constitution the, the work of the nation, 
16 ; of the nation distinguished from 
that of the government, 17; unwrit- 
ten, 17 ; reception of, 287; ratification 
of, 288; Appendix, xix. 

Consul-General, 327. 

Consuls, 327. 

Contempt, power of Congress to punish, 70. 

Continental Congress, First. 3(1 ; Second, 
31 ; action of, as to the Constitution, 
286,291. 

Contracts, States can not pass laws im- 
pairing obligation of, 154; United 
States as to, 158; include grants, 
case of Dartmouth College, 158. 

Convention of 1787, -II, 259, 26(1, 283 ; resolu- 
tions of, 284 ; secret proceedings, 287. 

Copyrights, Congress may issue, 119; 
formerly issued by the States, 120; 
term of, 120; mode of obtaining, 
120; international, 121. 

Corruption of blood in treason, 222; mis- 
interpreted, 223, 224. 

Counterfeiting, 112; laws in force, 113. 

Court of claims, 198. 

Courts of Gt. Britain, sphere of. 2(19. • 

Courts of U. S., three classes of, 196, 198; 
officers of, 199; not open to citizens 
of Dist. of Columbia and the Territo- 
ries, 205 ; powers, 210. 

Currency, Bureau of, 333. 

Customs, Commissioner of, 332; Collector 
of, other officers, 335. 



Dakota Territory, 312. 

Dallas, George M., Vice-President, 315. 

Debt, public, of U. S., 87; validity of, 279. 

Declaration of Independence, App., i. 

Delaware, ratification of the Constitu- 
tion, 288 ; first Constitution, 362. 

Delegated powers, 268-270. 

Democracy defined, 18. 

Departments, three, 48; Legislative, 48- 
161, 314; Executive, 161-195,319; Ju- 
dicial, 195-225, 356. 

Designs, patents for, 123. 

Direct taxes, 82; laid by U.S. but five times, 
82; act of 1861, 83; clause as to, 150. 

Director of the Mint, 334. 

Disabilities, removal of, 278. 

District Courts established, 196. 

District of Columbia, clause regarding, 
135; history of, 135, 136; Congress 
has power over, 136, 137; slavery in, 
abolished 1862, 138; territorial gov- 
ernment in, 139. 

Dollar, Spanish milled, 101 : weight in 1792, 
in 1853, 101 ; trade-dollar, 104. 

Duties, power of Congress to lay, 81 : act 
of 1789, 83; for protection of manu- 
factures, 83; must be uniform, 81 ; 
on exports forbidden, 151 ; forbidden 
to the States, 159. 

E 

Education, office of, 348; Commissioner 

of, 348. 
Elections for Congressmen, 66. 
Electors of President and Vice-President, 

164, 171. 
Eleventh Amendment. 271. 
Emancipation, proclamations of, 145, 146. 
Embargo act of 1807. 90. 
Envovs Extraordinary and Ministers 

Plenipotentiary, 325. 
Excises, power of Congress to lay, 81 ; 

meaning of, 84 ; act of 1791, 84. 
Txecutive Council in certain States, 367. 
Executive Department, 161-195; 319. 



Expatriation, act of 1868, 93; treaties in 

regard to, 91. 
Expenditures must be published, 152. 
Exports, value of, for 1872. 91 ; duties on, 

forbidden, 151, 159. 
Ex post facto law forbidden, 149: case ex 

parte Garland, 150; forbidden to 

States, 154. 
Expulsion, 7(); cases in Senate, 70. 
Extradition, 2:50. 



Faith and credit to be given to the public 
acts, 225: mode of doing it, 226. 

Fifteenth Amendment, 280, 281. 

Fillmore, Millard, Vice-President, 315; 
President, 315, 321. 

Fines, excessive, forbidden, 267. 

Florida, purchase of, 234; secession of, 
242; reconstruction of, 215; admit- 
ted into the Union, 302. 

Fourteenth Amendment, 273, 274. 

Franking privilege, 117; abolished, 118. 

Freedom of speech and press, 264, 265. 

Fugitives from justice given up, 229; law 
of 1793, 230; from another nation, 
230. 

Fugitives from labor to be given up, 231 ; 
laws of 1793 and 1850 repealed, 231. 

G 

Gallatin, Albert, as Senator. 62. 

General, office of, 129 ; pay of, 338. 

Georgia, but one legislative House in 1787, 
48 ; secession of, 242 ; reconstruction 
of, 245 ; ratification of the Constitu- 
tion by, 288 ; first constitution, 362. 

Gerry, Elbridge, Vice-President, 315. 

Gold, used for money, 100; reduction of 
coins in 1834, 101 ; a legal tender, 1()2 ; 
ratio to silver, 102; the only stand- 
ard in England, 103; coinage of 1S73, 
103. 

Government, civil, 9; object of, 10; not 
merely repressive, 11; not a neces- 
sary evil, 1 1 ; forms of, 18. 

Government of United States, 20-22. 

Governor, term of office, 367. 

Grand jury, 215, 266. 

Grant, Ulysses S., President, 321. 

Great Britain. Government of, 18, 19; im- 
peachment in, 64, 65 ; cabinet officers 
in Parliament, 76; legislative sphere 
in, 210. 

Guaranty of republican form of govern- 
ment to the States, 239-247. 

II 

Habeas Corpus, the writ of, 146-149. 

Hamlin, Hannibal, Vice-President, 315. 

Harrison, William H., President, 320. 

Heads of departments, 175, 179. 

Home Department, 344. 

Humphries, West H., impeached, 193, 194. 

I 

Idaho Territory. 312. 

Illinois, admission of, 299; constitution 
of 1870, provisions of, 362-367. 

Impeachment, power of, in House of 
Representatives, 55; method of, 56; 
power of trial in Senate, 64 ; if Presi- 
dent is tried, Chief Justice presides, 
64; six cases, 65; punishment for, 
65; officers liable to, 191 ; cases of, 
192, 193; two convictions for, 194. 

Implied powers of Congress, 139; views of 
Madison, Hamilton, Marshall. Story, 
140, 141; reasons for, 142, 143; in- 
stances of, 143, 144. 

Imports, value of, for 1S72, 91. 

Imposts, power of Congress to lay, 81. 



XXXVI 



INDEX. 



Income tax, first levied in 1861, 85. 

Independence, resolution for and declara- 
tion of, 34 ; Declaration of, App., i. 

Indian Affairs, Commissioner of, 348. 

Indian country, 313. 

Indiana, admission of, 293. 

Indians, in the United States, 91. 

Indictment, 215, 216; or presentment nec- 
essary for trial, 215, 266. 

Indirect taxation, 82. 

Inspection laws, 159. 

Interior, Department of, 344-349 ; salary 
of Secretary of, 344, 339. 

Internal Itevenue, system begun in 1791, 
84; act of 1862, 86; Bureau of, 333; 
amount of, in 1866, 333. 

Invasion, protection from, 239. 

Iowa, admission of, 304. 



Jackson, Andrew, President, 320. 

Jefferson, Thomas, Vice-President, 314; 
President, 320. 

Johnson, Andrew, impeached, 193, 195; 
Vice-President, 315; President, 321. 

Johnson, Uich'd M., Vice-President. 315. 

Journal of proceedings, 71. 

Judge- Advocate General. 338. 

Judges, term of office, 195, 197; compen- 
sation of, h»5, 199; two classes of, 
196 ; in 1869, three classes, 197 ; resig- 
nation of, 199 ; in different States, 363. 

Judicial circuits, 358. 

Judicial power, where vested, 195 ; its ex- 
teut, 200. 

Judiciary, act of 1789, 196, 199, 204. 211, 214. 

Jurisdiction, 206, 207 ; two views, 208. 

Jury, grand aud' petit, 215. 

Jury trial, 213, 219; in criminal prosecu- 
tions, 266; in other cases, 257. 

Justice, Department of, 352-356; salaries 
of officers of, 355, 359. 



Kansas, admission of, 308. 
Kentucky, admission of, 295; from Vir- 
ginia, 295. 
King, William R., Vice-President, 315. 
Ku Klux bill, 275. 



Land Office, 346. 
Legislation, mode of, 317. 
Legislative department, 48-161, 314-319. 
Legislatures, State, 368. 
Lieutenant-General, office of, 129. 
Light-house Board, 335. 
Lincoln, Abraham, President, 321. 
Louisiana, purchase of, 234, 298 ; secession 

of, 242; action of, 244 ; reconstruction 

of, 245 ; admission of, 298. 

M 

Madison, James, President, 320. 

Magna Charta, quoted, 213. 

Maine, admission of, 299. 

Male citizens, right of, to vote, 276. 

Marque, letters of, 126; signification of, 
127 ; forbidden to States, 154. 

Maryland, ratification of the Constitution 
by, 2S8 ; first Constitution, 362. 

Massachusetts, ratification of the Con- 
stitution by, 288; first Constitution 
Of, 362. 

Michigan, admission of, 302. 

Military,Acadeniy at West Point, 338 ; Jus- 
tice, Bureau of, 337. 

Militia, Congress may call forth, etc.; 
laws, 133 ; called out three times, 134 ; 
number in war of the rebellion, 135; 
necessary, 265. 



Ministers Plenipotentiary, salaries of, 325. 

Ministers Resident, 325; salaries of, 326. 

Minnesota, admitted, 307. 

Minority representation in Illinois, 363. 

Mint, established, loo; branches, 100; a 
bureau, 334. 

Mississippi, secession of, 242; reconstruc- 
tion of, 245; admission of, 299. 

31issouri in 1861, 243 ; admission of, 300. 

Missouri Compromise, 301, 303, 308, 309. 

Monarchy, lt>. 

Money, Congress has power to borrow, 86, 
87; has power to, coin aud regulate, 
100. 

Monroe, James, President, 320. 

Montana Territory, 312. 



Nation, The, 16. 

National Banks, established in 1863. 109; 
amount of circulation, 110 ; advan- 
tages of, 1 10 ; number of, 333. 

Naturalization, power in Congress, 91 ; 
under Confederation States had the 
power of, 92; laws of. 92; present 
mode, 93 ; case of soldiers, 93 ; re- 
stricted, 94; suffrage without, 94; in 
• districts, 95 ; law of 1870, 96. 

Naval stations, 340. 

Navy, Congress has power to provide a, 
130 ; number of ships and men in 1871, 
130 ; officers in, 131 ; government ot, 
131, 132; department of, 339-344; sal- 
arv of secretary, 340, 359. 

Navy Yards, 340. 

Nebraska, admission of, 311. 

Nevada, admission of, 311. 

New Hampshire, ratification of the Con- 
stitution by, 289; temporary govern- 
ment in 1776,361. 

New Jersey, ratification of the Constitu- 
tion by, 288 : temporary government 
in 1776, 361. 

New Mexico Territory, 306, 313. 

New States, 232; no general provision for 
admitting in Articles of Confedera- 
tion, 232 ; twenty-four admitted, 232 ; 
mode of admitting, 388. 

New York, ratification of the Const itu- 
_ tion by, 29(i; first Constitution. 362. 

Nobility, no title of, shall be granted. 153. 

North Carolina, secession of, 242; recon- 
struction of, 245; ratification of the 
Constitution by, 290; ceded her ter- 
ritory, 296 ; first Constitution. 362. 

North-west Territory, 297: divided, 297. 
Ordinance for, Appendix, xiii. 

Nullification of South Carolina, 256. 



Oath of office, of President, 175; required of 

officers, 256 ; statutes, 257, 258. 
Observatory. Naval. 341. 
Ohio, admission of, 296-298. 
Ordinance of '87, 297, App.,xiii. 
Oregon, admission of, 307. 
Original jurisdiction of courts, 206, 207. 

P 

Pardons, power to grant, in the President 
175; before conviction, 177. 

Patent Office, established, 121 ; receipts 
of, 124 ; reports, 124 ; a bureau in the 
Department of the Interior, 345. 

Patents, power over in Congress, 119; his- 
tory of, 121 ; Commissioner of, 121 ; 
for term of seventeen years, 122; 
formerly by the States, 122; mode of 
obtaining, 123. 

Pay of Army officers, 338 : of privates, 339 ; 
of Navy officers, 342; of seameu, 344. 



INDEX. 



XXXV11 



Peck, James H., impeached, 193, 194. 

Pennsylvania, its legislature in 17S7, 48; 
ratification of the Constitution by, 
288; first Constitution, 362. 

Pension Office, 345. 

People, righf of to assemble, 264, 265; the 
source of power, 270. 370. 

Pickering, John, impeached, 193, 194. 

Pierce, Franklin, President, 321. 

Piracy, clause concerning, 125. 

Political powers, 210, 235. 

Polk, James K., President, 321. 

Postage, 115; letter, 116. 

Postal, cards, 116 ; money-order system, 
117; telegraph, 119. 

Postmasters, 115. 

Postmasters-General, salary of, 350, 359; 
list of, 351; Assistants, 351. 

Post-office, Congress power to establish, 
114 ; number of in 1790, and 1872, 114 ; 
Department established, 349. 

Postroads, Congress power establish, 114 ; 
internal improvements, 118. 

Pound Sterling, value of, 105. 

Powers not delegated. 208 ; none delegated 
by the States, 270. 

Presentment, 215, 216, 266. 

Presents from foreign powers, 153; pro- 
posed amendment, 153 : 282. 

President of United States has veto 
power, 77; term of office, 161 ; seven 
re-elections, 163; mode of electing, 
164-171 ; amendment in regard to 
electing, 166 ; chosen by House of 
Representatives twice, 16s, 169; 
qualifications of, 171 : case of re- 
moval of, 1 j 2-174 ; compensation of, 
174 ; oath of office, 175 ; commander- 
in-chief of the army and navy, 175; 
power to reprieve or pardon, 175; 
power as to treaties, 179: power as 
to appointments, 179; power to fill 
vacancies in recess of Senate, 187 : 
annual message, 188, 189; may call I 
special sessions, 188; may adjourn i 
Congress, 188; shall receive ambas- 
sadors, 188; shall see that laws are 
executed, 188 ; list of, 319. 

President pro tempore of Senate, 63; com- 
pensation of, 73. 

Press, freedom of, 264, 265. 

Proprietary governments, 25, 27. 

Provincial, or royal governments, 25, 27. 

Public Debt, of U. S., amount of, S7 ; va- 
lidity of, 279; incurred in aid of re- 
bellion declared void, 279. 

Punishments, cruel and unusual, 257. 



Quorum, a majority, in Congress, 69; in 
Illinois, 363. 

R 

Ratification, of an Amendment to the 
Constitution, can a State withdraw 
her, 252; by disloyal States, 253; of 
the Constitution, by conventions, 
259, 260; case of Rhode Island and 
North Carolina, 261. 

Rebellion, disabilities from, 277. 

Reconstruction of States, 242-245; West 
Virginia and Missouri, 243. 

Register of the Treasury, duties of, 332. 

Registration of letters, 116. 

Religion, law respecting, 264 ; free exer- 
cise of, guarantied. 261. 

Religious test for office prohibited, 257; 
action of South Carolina, 259. 

Removal from office, 183-187. 

Reporters of the Supreme Court, 200. 

Representation, 50-55; basis of, 53; ratios 
the successive decades, 54. 



Representatives, term of office, 48; how 
chosen. 48; qualifications, 49; ap- 
portioned among the States, 50; 
number in First Congress, 50 ; num- 
bers in successive decades, 54; va- 
cancies, how filled, 55, choose their 
speaker, 55 ; have power to impeach, 
55; number of, reduced if the right 
to vote be denied, 275; number of, 
281; compensation of, 282,359; in 
State legislatures, 368. 

Reprieves, power to grant, 175-177. 

Reprisal, letters of marque and, 126; sig- 
fication of, 127, forbidden to States, 
154. 

Republic defined, IS. 

Republican form of government guaran- 
tied to the State*, 239; defined, 240. 

Retired officers, of the army, pay of, 338 ; 
of the navy, 343. 

Revenue, bills originate in House of Rep- 
resentatives, 76 ; Commissioner of 
Internal, 85. 

Rhode Island, no constitution till 18-12, 
26; the Dorr rebellion, 240; ratifi- 
cation of the Constitution by, 291; 
first constitution, 362. 

Rights, enumeration of, 268; difference 
between political and civil, 276. 

Rules of proceedings, 70. 

S 

Science, clause for promoting, 119. 

Searches and seizures, 266. 

Secession, of eleven States, 242; doctrine 
of, discussed, 245. 

Secretaries of State, list of, 323; six be- 
came Presidents,324. 

Secretaries of the Interior, list of, 345. 

Secretaries of the Navy, list of, 339. 

Secretaries of the Treasury, list of 328. 

Secretaries of War, list of, 336. 

Secretary of Legation, 326. 

Seignorage, 104. 

Senate, how composed, 56; differences in 
convention as to, 57: a permanent 
bodv, 60: vacancies, how filled, 61; 
Vice-President the President of, 62 ; 
President pro tempore, 63; power to 
try impeachments, 64. 

Senators, how elected, 59; divided into 
three classes, 59; doctrine of "in- 
struction," 61; qualifications, 62; 
in State legislatures, 368. 

Sessions of Congress, annual, 67; eleven 
instances of three, by same Con- 
gress, 68. 

Signal office, 337. 

Silver, reduction of, in coins, in 1S53, 
101 ; legal tender for small sums 
since 1853, 102; ratio to gold, 102; 
coins of 1873, 103; trade-dollar, 104. 

oiavery, abolished in U. S., 146,271 ; word 
first used, 271 ; proposed amendment 
to perpetuate, 282. 

Slaves, importation of, clause regarding, 
144; prohibited in 1808, 145; sum- 
mary as to slavery and the slave- 
trade, 145; payments for emanci- 
pation of, forbidden, 279. 

"Social Compact," meaning of, 12; not 
the source of civil authority, 13; the 
fallacy of the theory, 13. 

Society, the natural state of man, 12; its 
authority, 13; of divine origin, 14. 

Soldiers not to be quartered in houses 
without consent, 265. 

Solicitor General, 354. 

South Carolina, secession of. 242; recon- 
struction of, 245 ; ratification of the 
constitution by, 288 ; temporary gov- 
ernment in 1776, 361. 



XXXV111 



IXDEX. 



Sovereignty in the nation, 15, 370. 

Speakers of House of Represent a tires, 55 ; 
salary of, 73, 359 ; list of, 316. 

Special sessions of Congress, 1S9. 

Speech, freedom of, 264, 2>i5. 

Spirit ration abolished in >'avy, 34-1. 

Stamp duties, 84-86. 

State Department, 322-328 : duties of, 323; 
salary of the Secretary, 323, 359. 

States, their relation to the nation, 21 ; 
prohibitions on, 154-161, 273 ; have not 
exercised powers of sovereignty. 1"4 ; 
out of the Union, not snpposable, 
238; not compelled to remain such. 
ZiS; guaranty to, of a republican 
form of government, 239; duties on, 
enjoined by the Constitution. 241 ; 
may not be sued by citizens of 
other. 271 ; origin of, 294, 312. 

Statistics. Bureau of, 331. 

Suffrage, in Continental Congress. 51; in 
House of Representatives, 51 ; by 
those not naturalized. 95; in some 
States, 95; of women, 276; in differ- 
ent States, 369. 

Superintendent of the Census, 34-. 

Supreniacv of the Constitution and Laws 
of the U. S., 255. 

Supreme Court of I". S„ constitutional 
provision for, 195 ; organization of, 
left to Congress, 196 ; has pronounced 
void but three acts of Congress, 21 1 : 
list of Chief Justices of, 356; list of 
Associate Justices of, 35, ; salaries 
of Justices. 359. 

Supreme Court of Dist. of Columbia, 198 ; 
salaries of Justices of, 359. 

Surveyor, in the custom-house, 335. 

Surveyors General, of the laud office, 346. 



Taxation by States, 160. 

Taxes, power of Congress to lay, 81 ; di- 
rect and indirect, >2 : direct laid but 
five times by 0. S., 62. 

Taylor, Zachary, President, 321. 

Tennessee, secession of, 242 ; reconstruc- 
tion of, 244 ; admission of, 295 ; pre- 
viously a territory. 296. 

Tenth Amendment, 268; often misquoted 
and perverted, 26'.'; meaning of, 270. 

Territorial Courts, 359. 

Territories, 312; government of, 313. 

Territory, of U. S.. under control of Con- 
gress, 232; Ordinance of 17>, prior 
to Constitution. 234; no provision 
in Constitution for acquisition of, 
234; power to acquire incident to 
national sovereignty, 234 ; sover- 
eignty of, vested in the nation. 236 ; 
relation of, to the Union, 237 : differ- 
ence between a State and. 237. 

Texas, annexation of. 234 ; secession of. 
242; reconstruction of, 245; admis- 
sion of, 303. 

Thirteenth Amendment. 271 ; ratification 
of. 272. 

Titles of nobility, proposed amendment 
touching, 2>2 

Tompkins. Daniel D.. Vice-President, 315. 

Trade-marks, patents for. 123. 

Treason, denned, 219; petit and high, 
220 ; constructive. 220: Aaron Burr 
tried for. in 1807,222; Congress to 
declare punishment for, 222 ; the act 
of 1790. that of 1-62. 224 ; no treason 
against a State, 225. 

Treasurer, duties of, 331. 

Treasury Department, 32>-335 ; salary of 
the Secretary, 328, 359. 



Treasury notes. S3; various kinds. 105; 
made legal tender in 1862. lo5; are 
" bills of credit," 106 ; decision of 
Supreme Court as to, 106; not real 
money, 107. 

Treaties, powers of the President and 
Senate in making, 179: limitations 
of the power of. 180; case of payment 
of money. 180 ; how framed, 182. 

Treaty, etc., no State shall enter into any. 
154 ; clause in Articles of Confedera- 
tion. 155. 

Trial, by jury, 213 ; question of unani- 
mity, 214; by military commission, 
218; in the State where the crime 
was committed, 266. 

Tyler. John, Vice-President, 315; Presi- 
dent. 315, 320. 



Unconstitutional, only three acts of Con- 
gress decided to be, 211. 

Union, relation of seceded States to the, 
24»i ; admission of new States into, 
232-239, 2V4-31 2. 

Useful Arts, clause for promoting, 119. 

Utah Territory, 306, 313. 



Van Buren. Martin. Vice-President, 315; 
President, 320. 

Vermont, admission of, 294; from >"ew 
York, 295. 

Veto, by the President, 77 ; use of, by 
different Presidents, 78; not appli- 
cable to Amendments to the Consti- 
tution, 80 ; of Civil Rights Biil. 227 , 
bill passed over, how certified, 319. 

Vice-President. President of the Senate, 
62; no Vice-President contemplated 
at first, 62 ; term of office, 161 ; mode 
of electing. 164-171; chosen by Sen- 
ate once, 169; list of, 314; salary of, 
314, &59; no provision for filling va- 
cancy in office of. 315. 

Virginia, secession of, 242 ; reconstruction 
of, 245 ; ratification of the Constitu- 
tion by, 2*9 ; temporary government 
in 1776,361. 

Vote, right to, 280. 

Voting, various modes in Congress. 71. 

W 

War, Congress has power to declare, 126 ; 

no formal declaration of, in the wars 

of the U. S.. 12n.l27. 
War Department, 335-339 ; established, 

335 ; salary of the Secretary. 336, 35;'. 
Warrants for search must be special, 266. 
Washington. George, elected General, 32; 

President, 319. 
Washington Territory, 308, 312. 
Weights and measures, Congress lias 

power to regulate, ion, 110 ; the 

metric svstem authorized, ill. 
West Virginia, 243: admission of, 309. 
Wilson, Henry, Vice-President, 315. 
Wisconsin, admission of. 305. 
Witnesses. Euslish practice as to, 218; 

rights of accused persons to, 217, 2>i6. 
Wyoming Territory, 306, 312. 



Yeas and nays, in Congress, 71 ; under 
Articles of Confederation, 71 : used 
t<> delay proceedings, 71 ; in Illinois, 
363. 






I 



